IN THE CASE OF: 

		BOARD DATE:	    7 August 2014

		DOCKET NUMBER:  AR20130020457 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show:

* his rank as sergeant (SGT) instead of specialist five (SP5)
* he was awarded the Army Commendation Medal (ARCOM)

2.  The applicant states:

* his place of discharge was hastily changed from the continental United States to the Republic of Korea for the convenience of the Government
* neither he nor all his records were available at the time of his discharge
* the ARCOM was awarded to him in the Republic of Korea on 9 February 1968, after he was discharged from active duty

3.  The applicant provides:

* Special Orders Number 7, issued by Headquarters, 38th Replacement Battalion on 8 January 1968
* Letter of Commendation, dated 2 March 1967
* an extract of General Orders Number 16, issued by Headquarters, Eighth United States Army on 9 February 1968



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 12 November 1964.

3.  Special Orders Number 13, issued by Headquarters, Second Training Brigade, United States Army Training Center, Infantry, Fort Jackson, SC on 19 January 1965 show he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) effective 13 January 1965.

4.  His DA Form 20 (Enlisted Qualification Record) shows in:

	a.  Item 31 (Foreign Service), Korea from 15 June 1965 through 11 January 1968.

	b.  Item 33 (Appointments and Reductions), in part:

*	SP4 (specialist four)/E-4, (P) (Permanent), 4 December 1965
*	SP5/E-5 (T) (Temporary), 27 June 1966

	c.  Item 41 (Awards and Decorations), the following awards and decorations:

*	National Defense Service Medal
*	Army Good Conduct Medal (1st Award)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar

5.  Special Orders Number 145, issued by Headquarters, Special Troops, Eighth United States Army on 27 June 1966, show he was promoted to the temporary rank/grade of SP5/E-5, effective 27 June 1966.

6.  Unit Order Number 86, issued by Headquarters, United States Army Element, American Forces Korea Network on 28 November 1966, shows he was appointed to the temporary rank/grade of SGT/E-5, as an acting noncommissioned officer (NCO), effective 28 November 1966.

7.  On 29 December 1967, he submitted an exception to policy request for his separation within the command due to a pending job offer.  He listed his rank/grade as SP5/E-5.

8.  On 2 January 1968, his request for an exception to policy was approved. 

9.  On 11 January 1968, he was honorably released from active duty and transferred to the U.S. Army Reserve.  His DD Form 214 shows:

* his rank/grade as SP5/E-5
* he was awarded or authorized the National Defense Service Medal and the Army Good Conduct Medal (1st Award)

10.  General Orders Number 16, issued by Headquarters, Eighth United States Army on 9 February 1968, awarded him the ARCOM for meritorious service during the period July 1965 through November 1967.

11.  He provides a copy of Special Orders Number 7, dated 8 January 1968, which show his rank/grade as SGT/E-5.  He further provides a Letter of Commendation, dated 2 March 1967, which shows his rank as SGT.

12.  His record is void of evidence that shows, and he does not provide evidence that shows, he was promoted to the rank/grade of SGT/E-5 in other than an acting capacity.

13.  Army Regulation 600-8-22 (Military Awards) states the Korea Defense Service Medal (KDSM) is authorized for award to members of the Armed Forces of the United States who have 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.

14.  Army Regulation 600-200 (Enlisted Personnel Management System), then in effect, stated that company, troop, battery, and separate detachment commanders may appoint qualified individuals as acting corporals/E-4 and acting SGTs/E-5 to serve in position vacancies existing in their units, including those resulting from the temporary absence of an assigned NCO.  Acting NCOs were not entitled to pay and allowances of such higher grades and service as an acting NCO was not to be credited as time in a higher grade for promotion or date of rank purposes.

15.  Army Regulation 600-200 further provided that the appointment of acting NCOs, and the termination of such status, would be announced in orders issued by the appointing authority.  Acting NCO status would be terminated:

* at the discretion of the unit commander who made the appointment
* upon reassignment to another unit
* upon assignment of a regularly-promoted NCO to the position
* when casual groups reach their destination

16.  Army Regulation 635-5 (Separation Documents) established the standardized policy for preparing and distributing the DD Form 214.  The regulation in effect at the time stated:

   a.  The rank and pay grade in which a person was serving at the time of separation (release from active duty) would be entered in items 5a (Grade, Rate, or Rank) and 5b (Pay Grade) of this document.  An indication would be made whether the rank was permanent (P) or temporary (T).

	b.  Enter all decorations, service medals, campaign credits, and badges awarded or authorized, omitting authorities cited therein for Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized).

DISCUSSION AND CONCLUSIONS:

1.  Unit orders appointed the applicant to the acting rank/grade of SGT/E-5.  Although there are no orders terminating this appointment it would have terminated upon his reassignment, which should have been prior to his separation.  Further, his record is void of any evidence that shows he was ever temporarily or permanently promoted to the rank of SGT/E-5; therefore, he is not entitled to correction of his DD Form 214 to have his rank shown as SGT.

2.  General orders awarded him the ARCOM; therefore, he is entitled to correction of his DD Form 214 to show this award.

3.  Special orders awarded him the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), which is not shown on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show this badge.

4.  He served a qualifying period of service for award of the KDSM; therefore, he is entitled to correction of his DD Form 214 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 that the evidence presented was 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 amending his DD Form 214 to add the following awards and decorations:

*	Army Commendation Medal
*	Korea Defense Service Medal
*	Sharpshooter Marksmanship Qualification Badge with Rifle Bar

2.  The Board further determined that 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 changing his rank on his DD Form 214 to SGT.



      _______ _   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)                                         AR20130020457



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ABCMR Record of Proceedings (cont)                                         AR20130020457



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