PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 13 June 2002
         DOCKET NUMBER: AR2002069150


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

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Donald P. Hupman, Jr.		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that he receive two additional awards of the Purple Heart (PH) that were not included in his record; that he be awarded the Silver Star (SS) and Bronze Star Medal (BSM); and that his undesirable discharge (UD) be upgraded.

3. The applicant states, in effect, that he is entitled to two additional awards, or Oak Leaf Clusters (OLC), to his PH because he was wounded in action in Korea on three separate occasions and only received one award of the PH. He also claims that he was told by his unit commander that he was being recommended for the SS for his actions behind enemy lines in Korea, and also that his sergeant was told to recommend him for the BSM for his actions in and around Pork Chop Hill. In addition, he claims that his UD was based on his civil conviction for an offense he did not commit. He explains that while he was home on leave, his brother and his sister’s husband, who was wearing his jacket, took his car and broke into a liquor store. He states that he was arrested and convicted of this crime that he had no part in. He states that this conviction resulted in his being sentenced to 14 to 19 years in the penitentiary, but for some reason, he was released after serving just 1 year and 206 days. This release was accomplished by the town deputy sheriff and two Army officers, whom he believes discovered that he was innocent and took action to get him released. During this process, he was required to sign a document that he now believes was a form promising that he would not sue anyone for the improper arrest and conviction. He claims that subsequent to his release from the penitentiary, he was placed in a government sponsored training program at an Electric Company, where he trained for 90 days. Upon completion of his training, he was hired as a permanent employee and remained working there for 22 years. He concludes by indicating that he and his family would appreciate anything that could be done to upgrade his UD, and to provide him the awards to which he is entitled.

4. The applicant's military records were not available to the Board for review. A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973. It is believed that the applicant’s records were lost in that fire.

5. The available evidence does not include the facts and circumstances surrounding the applicant’s separation processing. However, it does include a properly constituted separation document (DD Form 214) that lists the authority and reason for the applicant’s discharge, which he authenticated with his signature in Item 48 (Signature of Person Being Separated). This document confirms that he entered active duty on 14 December 1948, and that he was separated under the provisions of Army Regulation 615-366, by reason of conviction by a civil court, on 20 May 1953.

6. The DD Form 214 also shows that at the time of his discharge, the applicant had completed 2 years, 10 months, and 11 days of creditable active military service and had accrued 571 days of time lost. It also shows that he served in Korea and that he earned the Army of Occupation Medal-Japan and the PH, for wounds he received in action in Korea. The PH was awarded in General Order (GO) Number 81, dated 9 August 1950, issued by the 24^th Infantry Division, Korea. The SS and BSM were not included in the list of earned awards contained in Item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the separation document. In addition, there were no OLCs to the PH listed in Item 27, which would indicate the applicant was entitled to additional awards of the PH during his active duty tenure.

7. The available evidence also includes a Military Personnel Records (MPR) Finding Report published by the National Archives and Records Administration (NARA). This report includes information from hospital admission cards created by the Office of the Surgeon General (OTSG) for the period 1950 through 1954. The information pertaining to the applicant contained in this report confirms that he was admitted to the hospital in Korea on two occasions in 1950. The first time was on 3 August 1950, when he was treated for a non-battle related condition of diarrhea. The second was on 23 December 1950, when he was treated as a battle casualty for a bullet wound he received as a direct result of action against the enemy.

8. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual military awards. Paragraph
1-14 (Time Limitations) states, in pertinent part, that each recommendation for an award of a military decoration must be entered administratively into military channels within 2 years of the act, achievement, or service to be honored.

9. Paragraph 2-8 contains guidance on awarding the PH. It states, in pertinent part, that the PH is authorized to members who are wounded in action. A wound is defined as an injury to any part of the body from an outside force or agent sustained in action. The wound for which a PH is being awarded must have required treatment by a medical officer, and the records of medical treatment for the wound or injury for which the PH is being awarded must have been made a matter of official record. It also stipulates that a PH is authorized for the first wound suffered in action, but for each subsequent award an OLC will be awarded to be worn on the medal or ribbon. Not more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent.

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10. Paragraph 2-10 contains guidance on awarding the National Defense Service Medal and it states, in pertinent part, that it is awarded for honorable active service for any period between 27 June 1950 and 27 July 1954.

11. Paragraph 3-9 contains guidance on awarding the SS. It states, in pertinent part, that it is awarded to any member of the Army who is cited for gallantry in action against an armed enemy of the United States while engaged in military operations involving conflict with an opposing force.

12. Paragraph 3-13 contains guidance on awarding the BSM. It states, in pertinent part, that it is awarded to any person who, while serving in any capacity after 6 December 1941, distinguished himself or herself by heroic or meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy; or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party.

13. Paragraph 3-18 provides the rules for processing the DA Form 638 (Award Recommendation), which is required to initiate, process, and approve award recommendations of all U.S. Army individual decorations, to include valor and heroism decorations.

14. Paragraph 5-18 contains guidance on awarding the Korean Service Medal. It states, in pertinent part, that it is awarded for service in Korea between 27 June 1950 and 27 July 1954. Paragraph 9-12 contains guidance on awarding the United Nations Service Medal. It states, in pertinent part, that it is awarded for service in Korea during the period between 27 June 1950 and 27 July 1954.

15. In addition, on 20 August 1999, the Defense Department approved the acceptance and wear of the Korean War Service Medal. This award is authorized for those members who served in Korea between 25 June 1950 and 27 July 1953. The Department of the Air Force was made the executive agent for providing these awards. The award may be requested by submitting a letter to the following address: “HQ, AFPC/DPPPRK, 550 C Street W, Ste 12, Randolph AFB, TX 78150-4714.” Veterans should include with their request, a copy of their separation document (DD Form 214) or correction to the separation document (DD Form 215), that shows that he/she was awarded the Korean Service Medal and the United Nations Service Medal.

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16. Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) provides guidance on determining or establishing the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during World War II and the Korean Conflict. It confirms that the applicant’s unit, the 24^th Infantry Division, earned the Republic of Korea Presidential Unit Citation during his assignment tenure.

17. Title 10 of the United States Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion. It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation. Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

18. Army Regulation 615-366, in effect at the time, provided for the separation of enlisted personnel by reason of civil court conviction for those personnel who were convicted in a civil court and sentenced to confinement for a period longer than 1 year. Members separated under this provision received an UD.

CONCLUSIONS:

1. The Board notes the applicant’s contention that he is entitled to a total of three awards of the PH based on his being wounded in action in Korea on three separate occasions. However, it finds insufficient evidence to support this claim.

2. By regulation, in order to award the PH, it is necessary to prove a soldier was wounded or injured in action, was treated for the wound by military medical personnel, and this medical treatment must have been made a matter of official record.

3. The available medical treatment records in this case show only that the applicant was hospitalized as a battle related casualty on just one occasion and that he received one PH. In addition, they confirm that he was hospitalized and treated for a non-battle related condition in August of 1950. However, there is no record of his being hospitalized or treated by military medical personnel for any other wound or injury received in action during his tenure on active duty.

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4. The Board wishes to advise the applicant that it does not question the veracity of his claim that he was wounded in action on three separate occasions. However, lacking supporting records and evidence to confirm his claim of entitlement to two additional awards of the PH, it is regrettably compelled to deny his request for these two additional awards of the PH. This action is taken in the interest of fairness and equity to all members who served in Korea and who face similar circumstances.

5. The Board also notes the applicant’s request for an upgrade to his UD, but it finds no evidentiary basis for granting this requested relief. The available evidence is void of the specific facts and circumstances concerning the events that led to the applicant’s discharge. However, it does include a properly constituted DD Form 214 that was authenticated by the applicant with his signature. This document identifies the reason and characterization of the applicant’s discharge and the Board presumes government regularity in the discharge process.

6. In the absence of evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Therefore, the Board finds the applicant has failed to provide sufficient mitigating factors to warrant upgrading his discharge at this time.

7. In addition, the Board elects not to evaluate the applicant’s claim of entitlement to the SS and BSM because he has yet to exhaust the administrative remedy available to him under the provisions of 10 USC 1130. This law allows for the consideration of awards not submitted within the proper timeframes. However, while it allows this consideration, it does not eliminate the need for these awards to be processed under normal submission procedures and criteria.

8. The applicant is advised that if he elects to pursue his claim of entitlement to these awards by pursuing this administrative remedy, he should submit a packet that includes the following documents through a Member of Congress to the Commander, PERSCOM, ATTN: TAPC-PDA, Alexandria, VA 22332-0471: a separate award recommendation (DA Form 638) for each of the awards in question, in this regard, anyone with first hand knowledge of his actions may recommend him for an award; a narrative of the actions performed, including the date of the action, for which the award is recommended; and any sworn affidavits, eyewitness statements, and related unit historical documents that support the awards in question. If after exhausting this administrative remedy, the awards in question are denied, and the applicant still believes that he is entitled to the awards, he may reapply to this Board with proof of the denial.

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9. During the review of this case, the Board did discover that based on his tenure on active duty and service in Korea, the applicant was entitled to the following awards that were not listed with the authorized awards contained in his DD Form 214: National Defense Service Medal, Korean Service Medal, United Nations Service Medal, Republic of Korea Presidential Unit Citation, and the Korean War Service Medal. Therefore, the Board concludes that it would be appropriate to add these awards to his record at this time.

10. The applicant is advised that if he desires to receive his Korean War Service Medal, he should submit a request to: HQ AFPC/DPPPRK, 550 C Street W,
Ste 12, Randolph AFB, TX 78150-4714. The request should include the following statement: “I served in the country of Korea, its territorial waters, or its airspace during the period 25 June 1950 to 27 July 1953 and have enclosed a copy of a source document, with my Social Security Number/Military Service Number, which proves my service in Korea. I understand that the enclosed copy of my source document will not be returned, and since this is a Foreign Service award, the Korean War Service Medal will only be issued once.” The request should also indicate the service the veteran served with in Korea (in this case the Army), and the complete address where he would like the medal sent. This address should include the applicant’s full name, service number, and address with street name, city, state, and zip code. Finally, the applicant must sign this request.

11. In view of the foregoing, the applicant’s records should be corrected as recommended below.

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RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing the individual concerned earned the National Defense Service Medal, Korean Service Medal, United Nations Service Medal, and Republic of Korea Presidential Unit Citation; and by providing him a corrected separation document that includes these awards.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__CLA__ __BJE__ __DPH___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Celia L Adolphi___
                  CHAIRPERSON

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INDEX

CASE ID	AR2002069150
SUFFIX
RECON
DATE BOARDED	2002/06/13
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1953/05/20
DISCHARGE AUTHORITY	AR 615-366
DISCHARGE REASON	Civil Conviction
BOARD DECISION	Grant Partial
REVIEW AUTHORITY
ISSUES 1. 46	107.0000
2. 61	107.0015
3. 189	110.0000
4.
5.
6.