IN THE CASE OF: BOARD DATE: 11 SEPTEMBER 2008 DOCKET NUMBER: AR20080006434 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, that his military records be corrected to show that he served as an Infantryman with the 2nd Infantry Division instead of as a Cook with the 32nd Infantry Regiment. 2. The applicant essentially states that he was not a Cook, and did not serve with the 32nd Infantry Regiment, and that he was in the 2nd Infantry Division. He also states, in effect, that the entries on his DD Form 214 (Report of Separation from the Armed Forces of the United States) which show that he was a Cook and served with the 32nd Infantry Regiment are a typing error. 3. The applicant provides his DD Form 214; a copy of a photograph which the applicant states is him in front of a squad of 2nd Infantry Division Soldiers after pulling back off the Demilitarized Zone (DMZ) and returning from "Pork Chop Hill" [Hill 255]; a two-page, undated and unsigned self-authored letter; and an undated letter which appears to be from the applicant's brother in support of this application. Although the applicant essentially stated that he provided a Combat Infantryman Badge in support of this applicant, it was not among the evidence received with his application. 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 majority of the applicant’s military records are not available for review. A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973. It is believed that the majority of the applicant's records were lost or destroyed in that fire. This case is essentially being considered using information from the applicant's DD Form 214. 3. The applicant's DD Form 214 essentially shows that he was inducted into the Army of the United States on 28 April 1953. This document also shows that he served 11 months and 21 days of foreign and/or sea service, and that his military occupational specialty (MOS) was 1824 (Mess Steward/Cook). On 26 April 1955, he was honorably released from active duty. His DD Form 214 shows that he was awarded the National Defense Service Medal, the Korean Service Medal, and the United Nations Service Medal. It should be noted that the Korean Service Medal was awarded for 30 consecutive or 60 non-consecutive days of service in Korea between 27 June 1950 and 27 July 1954, and that personnel awarded the Korean Service Medal automatically establishes eligibility for the United Nations Service Medal. 4. Item 5 (Qualifications) of the applicant's DD Form 214 essentially shows that he was awarded MOS 1824. Item 38 (Remarks) shows, in pertinent part, that the MOS of 1824 shown in item 5 of this document is the MOS for a Cook. Item 28 (Most Significant Duty Assignment) of this document essentially shows that he served as a Cook with Tank Company, 32nd Infantry Regiment. Item 48 (Signature of Person Being Separated) of this document shows that the applicant authenticated this document with his signature, attesting to the accuracy of the information contained on that form. 5. The applicant essentially stated that he was not a Cook, and did not serve with the 32nd Infantry Regiment, and that he was in the 2nd Infantry Division. He also stated, in effect, that the entries on his DD Form 214 which show that he was a Cook and served with the 32nd Infantry Regiment are a typing error. 6. The applicant provided a copy of a photograph which he states is him in front of a squad of 2nd Infantry Division Soldiers after pulling back off the DMZ and returning from "Pork Chop Hill." It was noted that the Soldier in this photograph is wearing a 2nd Infantry Division patch. 7. The applicant also provided a two-page, undated and unsigned self-authored letter, in which he essentially stated that he was on the DMZ when the armistice was signed by the Americans and North Koreans, and recalled that the final treaty was endorsed in 1954. He also stated, in pertinent part, that the 2nd Infantry Division was buried under the flurry of snow. He further stated, in effect, that he witnessed war crimes, and that after complaining to his commanding officer (C.O.) about the treatment of a North Korean soldier, his C.O. took the soldier from him, stripped him naked, and took a horse whip and proceeded to whip and tear open flesh from the North Korean soldier, he was driven and dumped off with the Thailand Army and left there. 8. The applicant also provided an undated letter which appears to be from his brother, which essentially stated that he served in the Korean conflict along with the applicant, and that a desk clerk made an error on the applicant's DD Form 214 by stating that the was a Cook during the Korean War. This letter also stated that after basic training, the applicant was sent to Korea where he served as a foot Soldier in the infantry, and was issued an M-1 rifle and bayonet for combat. This letter further stated that the applicant was a combat infantryman from the beginning of his service in Korea to the end, and that he served in the conflict from Inchon to Pusan up to the 38th parallel in North Korea with a combat infantry division. This letter continued by stating that it is the military's responsibility to correct the error that was made years ago, and that the applicant would like to be recognized as a combat infantryman rather than a Cook. 9. Hostilities ended in Korea on 27 July 1953 with the signing of the Korean War Armistice Agreement. The Korean DMZ was also created on that date. 10. "Pork Chop Hill" was abandoned by United States military personnel on 11 July 1953 prior to the establishment of the Korean DMZ. 11. Korea's climate is similar to the Midwestern United States, with the hottest temperatures in July and August, and the coldest temperatures from November through February. 12. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his military records should be corrected to show that he served as an Infantryman with the 2nd Infantry Division instead of as a Cook with the 32nd Infantry Regiment. 2. The applicant's contention that he served as an infantryman with the 2nd Infantry Division was considered. However, the evidence of record shows that the applicant authenticated his DD Form 214 with his signature, and this document clearly shows that he possessed MOS 1824 and that he served as a Cook with the 32nd Infantry Regiment. The copy of the photograph provided by the applicant of a Soldier wearing a 2nd Infantry Division patch was noted; however, there is no evidence which proves, by a preponderance of the evidence, that this is a photograph of the applicant. 3. The applicant's two-page, self-authored letter was also carefully considered. However, as the applicant was not inducted until 28 April 1953 and then had to complete basic training leaves doubt as to whether the applicant even arrived in Korea before hostilities ended on 27 July 1953, and especially that he served on "Pork Chop Hill" before the United States abandoned this position on 11 July 1953. His contention that he was fighting with the 2nd Infantry Division while the division was buried under snow also is questionable as there is no possibility of snow occurring in Korea while the applicant was assigned there but prior to the end of hostilities on 27 July 1953. 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 this requirement. In view of the foregoing, there is insufficient basis for granting relief to the applicant in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __XXX __ __XXX__ __XXX__ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States. The applicant and all Americans should be justifiably proud of his service in arms. ___ XXX ___ 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) AR20080006434 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080006434 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1