MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:

	BOARD DATE:           10 February 1999                 
	DOCKET NUMBER:   AC98-12007
				   AR1998012502

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Ed Clark		Analyst	

  The following members, a quorum, were present:

	Mr. Patrick Bogenberger		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Gary F. Geraets		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his military records be corrected by awarding him combat pay for service in Korea in 1950; in effect, that his military records be corrected to show that he was separated from active duty by reason of physical disability; and that his separation document be corrected to reflect an award of the Korean Service Medal (KSM) with a silver service star (denoting service in 
5 campaigns).

APPLICANT STATES:  In essence, that a letter signed by an Assistant Secretary of the Army (ASA, M&RA) establishes his entitlement to combat pay and an award of the KSM for service in Korea; and that "I should have been given help for my mind by the Army before I was discharged."  In support of the latter statement he submitted a VA document showing that he was diagnosed with dementia in 1995 and various documents labeled exhibits (in no particular sequence).

EVIDENCE OF RECORD:  The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from available reconstructed records.

A separation document, DD Form 214, submitted by the applicant, shows that he entered active duty on 12 December 1950; that on 8 December 1953, with 
2 years, 11 months, and 16 days total active service, he was honorably discharged; and that he was awarded the KSM with 3 bronze service stars.  A Certification of Military Service form, also submitted by the applicant shows that his service was terminated on 8 December 1953 by a general discharge under honorable conditions. 

A Notice of Discharge document, submitted by the applicant, shows that he was sentenced to 42 years and 6 months in prison for various offenses including armed assault with intent to rob, robbery in the 1st degree, and persistent felony offender, 1st degree; and that he would be discharged from the Northpoint Training Center, Burgin, Kentucky on 1 August 1995.

On 14 January 1997, in response to the applicant's letter addressed to the President, he was advised by the Army Reserve Personnel Center that his records had been burned in the 1973 fire at the NPRC; and that his only recourse was to apply to this Board.

On 13 August 1996, in response to the applicant's latest letter addressed to the President, the ASA, M&RA advised the applicant, in part, that "An investigation of your claim for combat pay for service as a member of [the applicant's unit in Korea at the time] determined that you are ineligible for combat pay."  Additionally, she cited Title 10, United States Code, Section 3702 as prohibiting payment of claims not submitted to the Comptroller General within 6 years after the claim accrued.  She further wrote "The United States Center of Military History provided records indicating that [the applicant's unit in Korea] received credit for six military campaigns during the Korean War.  As such, you qualify for the Korean Service Ribbon with silver star and oak leaf cluster.  These items are enclosed."

A VA document dated 10 September 1997 shows that the applicant "is in receipt of VA non-service connected pension based on the following conditions: Brain syndrome, ulcer, degenerative arthritis, and bronchial condition.

Army Regulation 600-8-22, Military Awards, provides that the KSM is awarded for service in Korea between 27 June 1950 and 27 July 1954.  One bronze service star is authorized for each campaign and a silver service star is worn in lieu of five bronze service stars.  (Service ribbons are identical to the suspension ribbon of the medals they represent, mounted on bars equipped with attaching devises and are issued for wear in place of medals).

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 3-2b(2), provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit. This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Title 38, United States Code, section 3.303, provides that the term “Service connection” connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions.  Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.”

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  An investigation of the applicant's claim of entitlement to combat pay for service in Korea determined that he was ineligible for combat pay.  He has not provided sufficient documentation to indicate otherwise.  Further, presuming for the sake of argument that he could submit such documents, payment of such a claim must be submitted to the Comptroller General within 6 years after the claim accrues in accordance with Title 10, United States Code, section 3702.  The applicant served in Korea approximately 49 years ago; therefore, regardless of any action taken by the Board, finance officials would refuse payment.

2.  The applicant's request for an award of the KSM with a silver service star has already been administratively accomplished as shown in the 13 August 
1996 letter signed by the ASA, M&RA.

3.  The applicant was separated from active duty by reason of ETS.  Accordingly, the presumption of fitness rule, outlined in Army Regulation 635-40, applies.  Further, the evidence of record reflects that the VA has determined that the claimed mental disorder, diagnosed in 1995, was not service connected, that is to say, not related to his military service.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

PB _____  ELA_____  GFG____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12007/AR1998012502	
SUFFIX	NA	
RECON	NA	
DATE BOARDED	1999 February 10	
TYPE OF DISCHARGE	NA	
DATE OF DISCHARGE	NA	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON	NA	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.	107.00	
3.	128.00	
4.		
5.		
6.