BOARD DATE:	  12 August 2014

		DOCKET NUMBER:  AR20130021349 


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 (Report of Separation from Active Duty) to show:

	a.  his rank/grade as sergeant (SGT)/E-5 instead of specialist four (SP4)/E-4; and

	b.  award of the Korea Defense Service Medal (KDSM).

2.  The applicant states:

* he was promoted in 1975 or 1976 as an acting noncommissioned officer (NCO) in the rank of SGT
* his promotion was omitted from his DD Form 214 and kept out of his personnel records
* he is eligible for the KDSM for his service in Korea during the period 1974-1975

3.  The applicant provides:

* DA Form 2166-4 (Enlisted Efficiency Report)
* Unit Orders Number 40, issued by Headquarters and Headquarters Company (HHC), 16th Signal Battalion, Fort Hood, TX on 25 September 1975 for appointment as acting NCO in the rank of SGT
* letter of appreciation
* DD Form 214

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 21 August 1973 for a period of 3 years.  He completed training and was awarded military occupational specialty 31M (Multichannel Equipment Operator).

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows:

* he was credited with overseas service in the Republic of Korea from 18 April 1974 through 19 April 1975
* he was promoted to the rank of SP4 effective 1 November 1974

4.  Unit Orders Number 40, issued by HHC, 16th Signal Battalion on 25 September 1975, appointed him as an acting NCO in the rank of SGT.

5.  He was honorably released from active duty (REFRAD) on 20 August 1976.  The DD Form 214 he was issued does not show the KDSM as an authorized award.  His DD Form 214 shows in:

* item 6a (Grade, Rate, or Rank) – SP4
* item 6b (Pay Grade) – E-4
* item 7 (Date of Rank) – 1 November 1974

6.  There is no available evidence that shows he was recommended for promotion to SGT/E-5 by a promotion selection board and placed on a recommended promotion list prior to his REFRAD on 20 August 1976.

7.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized policy for preparation of the DD Form 214.  It stated the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active service.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  The instructions stated for:

	a.  item 6a, enter the grade in which serving at the time of separation;

	b.  item 6b, enter the pay grade; and

	c.  item 7, enter the date of rank for the grade shown in item 6a.

8.  Army Regulation 600-200 (Enlisted Promotions and Reductions), in effect at the time, prescribed the policies, responsibilities and procedures pertaining to the career management of Army enlisted personnel.  Chapter 7 provided the policies and procedures for promotion and reduction of enlisted personnel.  

	a.  Unit commanders could appoint qualified individuals as acting corporals and acting sergeants to fill unit vacancies.  It further specified that acting NCOs were not entitled to pay and allowances for such higher grades and that service would not be credited as time in a higher grade for promotion or date of rank purposes.

	b.  Recommendation by a promotion selection board and placement on a permanent recommended promotion list was required for all promotions to SGT and staff sergeant.  The promotion authority for these ranks was a field-grade commander.

9.  Army Regulation 600-8-22 (Military Awards) states the KDSM 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 contention that he was promoted as an acting NCO in the rank of SGT was noted; however, appointment orders to acting NCO positions are not promotion orders.  

2.  Since there is no evidence of record showing he was recommended for promotion to SGT by a promotion selection board and placed on a recommended promotion list prior to his REFRAD on 20 August 1976, there is insufficient evidence in which to grant his request to change his DD Form 214 to show his rank/grade as SGT/E-5.
3.  He served a period of qualifying service for award of the KDSM; therefore, his DD Form 214 should be corrected to show this medal.

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 KDSM 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 amending his DD Form 214 to show his rank/grade as SGT/E-5 instead of SP4/E-4.





      ___________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)                                         AR20130021349



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ABCMR Record of Proceedings (cont)                                         AR20130021349



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