IN THE CASE OF:    

		BOARD DATE:  16 April 2015	  

		DOCKET NUMBER:  AR20140011366 


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 to his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show 13 months of foreign service and reinstatement of his rank to specialist four (SP4) and pay grade E-4.  

2.  The applicant states he served in Korea.  His records were lost at the time of his separation from active duty.

3.  The applicant provides a copy of his 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 23 November 1976 on a station of choice option for assignment to Fort Carson, Colorado.
3.  On 16 September 1978, the applicant in the rank/pay grade of SP4/E-4 accepted a field grade nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for assaulting a commissioned officer by grabbing him and attempting to pull him through a bus window.  The imposing official's punishment included a reduction to the rank of private first class (PFC)/pay grade E-3 and extra duty for 30 days.  The applicant did not appeal the NJP.

4.  The applicant's OMPF is void of reduction orders reducing him to PFC/E-3 based on the punishment imposed by the NJP.

5.  He was honorably released from active duty on 22 November 1979 and transferred to the U.S. Army Reserve.  He was issued a DD Form 214 that shows in item 4a (Grade, Rate or Rank) the entry "PFC" and item 4b (Pay Grade) the entry "E-3."   Item 12h (Record of Service – Effective Date of Pay Grade) shows the entry 1 September 1978.  

6.  Item 12f (Foreign Service) of his DD Form 214 shows zero years, zero months, and zero days.  Item 18 (Remarks) states that he was separated on temporary records and that a DD Form 215 (Correction to DD Form 214) would be issued to provide the missing information.  There is no indication that this was done.  His existing records are incomplete.

7.  The earliest available evidence showing he served in Korea is a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 
16 September 1978.  The latest is a medical laboratory report, dated 26 July 1979.  Both indicate he was assigned to 1st Battalion, 9th Infantry Regiment.

8.  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 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.

9.  Army Regulation 635-5 (Separation Documents) states a DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty service.  Personnel officers will use the DA Form 201 (Military Personnel Records Jacket), DA Form 2 and 2-1 (Personnel Qualification Records), enlistment/reenlistment documents, orders, and any other available records in the preparation of the DD Form 214.  It states for:

	a.  item 4 (a and b) enter active duty grade of rank and pay grade at time of separation;
   b.  item 12f enter the total amount of foreign service completed during the period covered by the DD Form 214;
   
   c.  item 12h enter the effective date of promotion [reduction] to pay grade;

	d.  item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) enter awards and decorations for all periods of service in the priority sequence specified in Army Regulation 600-8-22; and

	e.  item 18 for an active duty Soldier deployed to a foreign country with his or her unit during their continuous period of active service, enter the statement, "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD - YYYYMMDD)."  (Later versions of this regulation added the definitive periods of foreign service to the DD Form 214.)

DISCUSSION AND CONCLUSIONS:

1.  The applicant was clearly assigned to duty in Korea; however, the available documents do not show the defining dates of his tour of duty.  Therefore, it is in the interest of justice to show the most accurate foreign service dates available which is from at least 10 September 1978 to 26 July 1979 for 9 months and 17 days.

2.  Based on his service in Korea, the applicant is authorized the Korea Defense Service Medal and his DD Form 214 should be corrected to show this award.

3.  The evidence of record shows the applicant was reduced to PFC/E-3 on 19 September 1978 under the provisions of the UCMJ.  Therefore, his DD Form 214 accurately shows his rank and pay grade at the time of his separation from active duty and there is insufficient evidence (promotion orders) to correct his DD Form 214 to show the rank and pay grade of SP4/E-4.  

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 changing his DD Form 214 by:  

	a.  changing item 12f to read, "SEE ITEM 18";

	b.  adding to item 13 the Korea Defense Service Medal; and 

	c.  adding to item 18, "Service in Korea with 1st Battalion, 9th Infantry Regiment for at least the period 10 September 1978 to 26 July 1979 (9 months and 17 days.)"

	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 showing he served in Korea for 13 months and amending his DD Form 214 to show his rank and pay grade as 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)                                         AR20140011366



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ABCMR Record of Proceedings (cont)                                         AR20140011366



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