BOARD DATE:	  29 May 2014

		DOCKET NUMBER:  AR20130016086 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show:

* his rank as first sergeant (1SG) vice master sergeant (MSG)
* award of the Legion of Merit

2.  The applicant states, in effect, he was awarded the Legion of Merit, but it was not added to his DD Form 214.  Additionally, his retirement orders show his retired rank as 1SG.

3.  The applicant provides his Legion of Merit Certificate and retirement orders.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 4 April 1977 and served the majority of his career in military occupational specialty (MOS) 76J (Medical Supply Specialist).  He served in a variety of overseas and stateside assignments and attained the rank/grade of 1SG/E-8.

3.  U.S. Total Army Personnel Command (currently known as the U.S. Army Human Resources Command) Order Number 192-16, dated 20 December 1993, promoted him to the rank/grade of MSG/E-8 in MOS 76J5M with an effective date and date of rank of 1 February 1994.

4.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he served in Korea from 25 October 1994 to 24 October 2005.

5.  His records contain a series of DA Forms 2166-7 (Noncommissioned Officer Evaluation Report).

	a.  During the rating periods June 1993 through May 1994 and June 1994 through October 1994, his rank/grade was listed as MSG/E-8 and he served as the Noncommissioned Officer in Charge (NCOIC) of the Logistics Division.

	b.  During the rating period November 1994 through October 1995, his rank/grade was listed as 1SG/E-8 and he served as the Company 1SG.

	c.  During the rating periods November 1995 through October 1996 and November 1996 through February 1997, his rank/grade was listed as MSG/E-8 and he served as the NCOIC of the Logistics Division.

6.  16th Medical Logistics Battalion, Korea, Permanent Order 04-04, dated 6 April 1995, awarded him the Army Good Conduct Medal (6th Award).

7.  Headquarters, U.S. Army Signal Center and Fort Gordon, Fort Gordon, GA, Orders 326-0908, dated 21 November 1996, show he was released from active duty effective 30 April 1997 and placed on the Retired List in the rank of 1SG effective 1 May 1997.

8.  He was honorably retired on 30 April 1997.  His DD Form 214 shows his rank/grade as MSG/E-8, he completed the 1SG Course, and he was awarded or authorized the:

* Meritorious Service Medal (3rd Award)
* Army Commendation Medal (3rd Award)
* National Defense Service Medal
* NCO Professional Development Ribbon with Numeral 3
* Army Service Ribbon
* Overseas Service Ribbon (3rd Award)
* Expert Marksmanship Qualification Badge with Rifle Bar
* Expert Field Medical Badge
* Driver and Mechanic Badge with Driver-W Bar
* Drill Sergeant Identification Badge

9.  A Legion of Merit Certificate is filed in his Army Human Resource Record (AMHRR) showing he was awarded the Legion of Merit on 22 May 1997 for exceptionally meritorious service during the period 1 February 1987 to 31 January 1997.  This certificate contains a handwritten notation by the filing official showing Permanent Order 127-14, dated 7 May 1997, as the authority for this award.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 12-17 (Grade Title on Retired List of Former 1SG), prescribes policy and procedures for separation of enlisted personnel and stipulates that NCO's holding the rank of MSG at retirement whose records show successful service as a 1SG will be placed on the Retired List in the grade title of 1SG.  The following are the only criteria for such placement on the Retired List:

	a.  The Soldier must be serving in and retiring in pay grade E-8.

	b.  The Soldier must possess special qualification identifier "M."

	c.  The Soldier must have served as a 1SG in pay grade E-8.  No minimum time period is specified.  Service in the duty position of 1SG while in pay grade 
E-7 does not meet this requirement.

11.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  It established standardized policy for preparing and distributing the DD Form 214 and contained item-by-item instructions for completing the DD Form 214.  It stated the entry in item 4a (Grade, Rate, or Rank) would be the rank the member held on the date of separation.

12.  Army Regulation 600-8-22 (Military Awards) states the Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who served on active duty in support of the defense of the Republic of Korea.  The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's retirement orders show he was placed on the Retired List in the rank of 1SG.  However, this does not justify correcting his DD Form 214 to show his rank as 1SG.  The rank listed on the DD Form 214 is the rank a Soldier held at the time he was released, discharged, or retired from active duty.  At the time he retired he held the rank of MSG.  As such, the rank shown on his DD Form 214 is correct.

2.  His AMHRR contains a Legion of Merit Certificate.  The official who filed this document annotated the order number and date on the front of this certificate before filing it in his records.  Therefore, administrative regularity should be presumed in that this award was authorized and properly filed in his AMHRR.  As such, he is entitled to correction of his DD Form 214 to show this award.

3.  Permanent orders awarded him the Army Good Conduct Medal (6th Award); however, this award was not annotated on his DD Form 214.  Therefore, he is entitled to correction of his DD Form 214 to show this award.

4.  The evidence of record shows he served in Korea during a qualifying period for award of the Korea Defense Service Medal.  Therefore, he is authorized award of the Korea Defense Service Medal and his DD Form 214 should be corrected to show this award.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  ___X_____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding award of the Legion of Merit, Army Good Conduct Medal (6th Award), and Korea Defense Service Medal to his DD Form 214.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correction of his DD Form 214 to show his rank as 1SG.



      ___________X_____________
                  CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20130016086



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ABCMR Record of Proceedings (cont)                                         AR20130016086



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