RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           14 December 2005
      DOCKET NUMBER:  AR20050005717


      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:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Leonard G. Hassell            |     |Member               |
|     |Mr. Michael J. Flynn              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the records of his deceased
father, a former service member (FSM), be corrected by awarding the FSM all
overseas awards and decorations; by amending the race entry pertaining to
the FSM in Special Orders, dated 15 January 1953; by recognizing the pain
and suffering of the FSM based on injuries and treatment for Tuberculosis
he received while on active duty; by amending the FSM’s separation document
(DD Form 214) to remove the 33 days of time lost listed and by providing
all back pay and allowances due as a result; by ensuring the FSM’s DD Form
214 lists all medals to which he is entitled and that they be issued to the
FSM’s daughter and/or his granddaughter by Army officers; and that the Army
issue a public apology for the lack of respect it gave the FSM.

2.  The applicant states, in effect, that based on the error in the orders
in question, he believes his father was unjustly denied his personnel and
medical record when he filed a claim for a skin rash in 1953.  The
applicant further indicates it is unknown what the FSM was hauling in his
heavy duty truck in Germany while he was on active duty.  He further states
the FSM’s separation document (DD Form 214) does not indicate the FSM
earned any overseas medals or decorations.  He concludes by stating his
father was continually denied compensation benefits and these errors could
have impacted the denials.

3.  The applicant claims the records clearly show the FSM suffered an
injury to his right knee while serving on active duty on 2 January 1952, as
evidenced by medical records for that date.  He claims his father suffered
from this injury for
17 days, and the records are unclear regarding what cargo he was hauling in
his truck, or if he suffered from effects from chemical leaks and/or from
exposure to some substance he was hauling.  He further states his father
contracted tuberculosis while he was in Germany, or at the least he was
hospitalized in Germany for 13 days and treated with penicillin.  He claims
his father reopened his claim in 1974; however, there is no mention of the
claim he filed in 1953.

4.  The applicant provides the following documents in support of the
application:  FSM’s DD Form 214; FSM’s Death Certificate; Special Orders
(SO) Number (#) 150, dated 26 June 1952; SO # 9, dated 15 January 1953;
Request for Administrative and Adjudication Action (VA Form 595), dated 21
May 1953; Request for Army Information (VA Form 3101, dated 27 May 1953;
Medical Treatment Cards, dated 2 January 1952 and 1 October 1950,
respectively; Rating Sheet (VA Form 8-564); Clinical 6 March 1952; Medical
Treatment Cards, dated 28 October 1950 and 20 March 1952; and his birth
certificate proving he is the FSM’s son.
CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 27 June 1952.  The application submitted in this case is
dated
5 April 2005.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The FSM’s military records are not available to the Board for review.
A fire destroyed approximately 18 million service members’ records at the
National Personnel Records Center (NPRC) in 1973.  It is believed that the
FSM’s records were lost or destroyed in that fire.  However, there were
sufficient documents remaining in a reconstructed record for the Board to
conduct a fair and impartial review of this case.  This case is being
considered using reconstructed records, which primarily consist of the
FSM’s DD Form 214 and the documents provided by the applicant.

4.  The FSM’s DD Form 214 shows he was inducted into the Army and entered
active duty on 27 September 1950.  He served in military occupational
specialty (MOS) 931 (Heavy Truck Driver) and completed 1 year, 2 months and
12 days
of foreign service.  His most significant duty assignment was the
70th Transportation Heavy Truck Company, Germany.

5.  Item 12 (Race) of the FSM’s DD Form 214 contains the entry “Negroid”.
Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign
Ribbons Awarded or Authorized) contains the entry “None”.  Item 38
(Remarks) contains the entry 33 days lost under Article of War 107.

6.  The DD Form 214 further shows the FSM was  honorably separated on
27 June 1952.  At the time, he had completed a total of 1 year, 7 months
and
28 days of creditable active military service.  The FSM authenticated this
document with his signature in Item 48 (Signature of Person Being
Separated).

7.  The applicant provides military medical treatment records that indicate
the FSM was treated for various minor illnesses between October 1950 and
January 1952.  None of these records show treatment for a skin condition.
He also provides an SF 502, which documents the FSM’s hospitalization and
treatment from 7 through 20 March 1952.  This document confirms the FSM, a
25 year old Negro male, was admitted to the 130th Station Hospital for
observation of a lung condition.  It further shows the applicant was
treated and that his upper respiratory symptoms improved satisfactorily.
The hospital record further shows the FSM was observed for tuberculosis,
pulmonary, but this condition was not found.

8.  On 27 May 1953, the VA submitted a VA Form 3101 to the Army requesting
additional medical treatment records for a skin condition the FSM was
treated for in Heidelberg, Germany in 1952.  The Army responded on 8 June
1953, and confirmed no additional medical records pertaining to the FSM
were found.

9.  The applicant provides a copy of Headquarters, Fort Meade SO # 150,
dated 26 June 1952, which authorized the FSM’s release from active duty
(REFRAD) on 27 June 1952 and his transfer to the United States Army Reserve
(USAR) for five years, effective 28 June 1952.  These orders separating the
FSM from active duty clearly identify his race as Negro.  He also provides
a copy of Pennsylvania Military District SO # 9, dated 15 January 1953,
which were issued to the FSM subsequent to his REFRAD.  These orders
assigned the applicant to his USAR unit and erroneously listed his race as
Caucasian.

10.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and
criteria concerning individual military awards.  The regulation does not
provide for awards specifically for overseas service in Germany during the
applicant’s tenure on active duty.

11.  Paragraph 2-10 of the awards regulation provides guidance on the
National Defense Service Medal, which was established by Executive Order
Number 10448 on 22 April 1953, and amended by Executive Orders Number 11265
on
11 January 1966, 11382 on 28 November 1967, 12776 on 18 October 1991 and
Secretary of Defense Memorandum on 26 April 2002.  It is awarded for
honorable active service for any period between 27 June 1950 and 27 July
1954, both dates inclusive; between 1 January 1961 and 14 August 1974, both
dates inclusive; 2 August 1990 and 30 November 1995; and 11 September 2001
to a date to be determined.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and the supporting evidence he provided
were carefully considered.  However, there is no evidence of record, or
independent evidence provided by the applicant that would support a
determination that the FSM was not treated with appropriate dignity and
respect during his tenure on active duty.  As a result, there is
insufficient evidence to support the applicant’s request for a public
apology from the Army.

2.  The FSM’s official active duty documents, to include his DD Form 214,
clearly identify his race as “Negroid”.  The administrative error made
regarding the FSM’s race in a Reserve Component order that was issued
subsequent to his active duty service had no impact on the FSM’s
entitlement to Veteran’s benefits, which would have been established based
on his active duty service as documented in his DD Form 214.

3.  The medical treatment records provided by the applicant confirm the FSM
was treated for various minor injuries and ailments during his tenure on
active duty.  One of these illnesses was an upper respiratory ailment that
did not turn out to be Tuberculosis.  None of these medical conditions
provide any indication that the FSM suffered from a disabling medical
condition that would have warranted his disability processing through
medical channels.  The FSM was honorably separated and transferred to the
Reserve Component, as documented on his DD Form 214.  This confirms he was
found medically fit for retention/separation at the time, which is further
confirmed by his continued service in the Reserve Component.

4.  The applicant’s request that the lost time recorded on the FSM’s DD
Form 214 be deleted was also carefully considered.  However, a presumption
of Government regularity is attached to the information contained on the
separation document.  Further, the FSM authenticated the DD Form 214 with
his signature on the date of his separation.  In effect, this was his
verification that the information contained on the DD Form 214, to include
the lost time entry, was correct at the time the document was prepared and
issued.

5.  The awards regulation confirms there were no specific awards issued for
overseas service in Germany during the period of the FSM’s active duty
service.  In addition, there is no indication that he ever received an
individual award or decoration during his tenure on active duty.

6.  Records show the alleged error or injustice now under consideration
regarding the FSM’s active duty service should have been discovered on
27 June 1952, the date of the FSM’s separation from active duty.
Therefore, the time to file a request for correction of any error or
injustice expired on 26 June 1955.  However, the FSM failed to file within
the 3-year statute of limitations and the applicant has failed to provide a
compelling explanation or evidence to show that it would be in the interest
of justice to excuse failure to timely file in this case.

7.  The evidence does show that on 22 April 1953, subsequent to the FSM’s
separation from active duty, the National Defense Service Medal was
authorized for honorable active duty service between 27 June 1950 and 27
July 1954.  The omission of this award from the FSM’s record and separation
document is an administrative matter that does not require Board action to
correct.  Therefore, the Case Management Support Division (CMSD), St.
Louis, Missouri, will administratively correct the FSM’s separation
document as outlined in paragraph 3 of the BOARD
DETERMINATION/RECOMMENDATION section below.

8.  The applicant is also advised that his issues regarding claims made for
Veterans’ benefits administered by the Department of Veterans Affairs (VA)
should be addressed to that agency.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JNS _  __LGH___  __MJF__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.

3.  The Board determined that administrative error in the records of the
Former Service Member should be corrected.  Therefore, the Board requests
that the CMSD-St. Louis administratively correct the records of the Former
Service Member to show his entitlement to the National Defense Service
Medal; and by providing the applicant a copy of a correction to the
separation document that includes this award.




            ____John N. Slone______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050005717                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/12/14                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1952/06/27                              |
|DISCHARGE AUTHORITY     |AR 615-362                              |
|DISCHARGE REASON        |Release to Reserves                     |
|BOARD DECISION          |DENY with Adm Note                      |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  1021 |100.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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