RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 July 2006
      DOCKET NUMBER:  AR20050017127


      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. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 her late husband’s records be
corrected to show award of the Purple Heart and that he had a 70 percent
disability evaluation.

2.  The applicant states the former service member (FSM) was wounded in
Korea and received the Purple Heart.  He was rated by the Department of
Veterans Affairs (VA) at 70 percent disabled in 1970.

3.  The applicant provides copies of the FSM’s death certificate and a
State of Indiana application for a reemission of fees.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel did not present any additional arguments, contentions, or
documentation beyond that set forth in the application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 31 May 1952, the date the FSM was placed on permanent
disability retirement.  The application submitted in this case is dated
November 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 service medical records are on permanent loan to the VA and
hence, not available for Board review.

4.  The FSM entered active duty on 26 February 1951 and served in Korea as
a rifleman with Company E, 5th Cavalry Regiment from 25 September 1951
through 18 December 1951.

5.  Headquarters 5th Cavalry Regiment Special Orders Number 16, dated
23 January 1952 awarded the applicant the Combat Infantryman Badge,
effective 6 November 1951.

6.  An FEC AGO Form 241 (Casualty Report) shows that the FSM was wounded in
action by an enemy hand grenade, receiving shrapnel wounds to his face,
both ears, both legs, right arm, left hand, and left eye on 26 October
1951.

7.  Headquarters Tokyo Army Hospital General Orders Number 371 awarded the
FSM the Purple Heart for wounds received as a result of enemy action on
26 October 1951.

8.  The applicant appeared in person with counsel before a Physical
Evaluation Board (PEB).  The PEB determined that the FSM did not qualify
for retention on active duty as a result of the loss of vision in his left
eye.  They determined that he should be medically retired with a 30 percent
disability evaluation.  There is no indication that the FSM disagreed with
the determination.

9.  The applicant was medically retired on 31 May 1952.  His DD Form 214
(Report of Separation) shows he had 1 year, 3 months, and 5 days of Federal
service.  It lists his awards as the Korean Service Medal with one bronze
service star and the Purple Heart.

10.  The DA Form 20 (Soldier’s Qualification Card) indicates he was awarded
the Korean Service Medal with one bronze service star, the Purple Heart,
and qualified as marksman on both the M1 rifle and M1 carbine.

11.  The FSM passed away on 7 February 1982.

12.  In 1994, the State of Indiana verified the FSM’s status as a part of
his daughter’s request for educational benefits.  The form verified that
the FSM had served during a period of war, was honorably discharged, and
had a service-connected disability.  It did not verify his award of the
Purple Heart.

13.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent
part, that:

      a.  the Good Conduct Medal is awarded to individuals who distinguish
themselves by their conduct, efficiency and fidelity during a qualifying
period of active duty enlisted service.  This period is 3 years except in
those cases when for the first award only, upon termination of service, on
or after 27 June 1950, of less than 1 year when final separation was by
reason of physical disability incurred in line of duty.  Although there is
no automatic entitlement to the Good Conduct Medal, disqualification must
be justified.  Current practice requires that the commander provide written
notice of nonfavorable consideration and permits the individual to respond.
 At that time, a disqualification was normally noted on the DA Form 20;


      b.  the National Defense Service Medal is awarded for honorable active
service for any period between 27 July 1950 through 27 July 1954, 1 January
1961 through 14 August 1974, 2 August 1990 through 30 November 1995, and
11 September 2001 to a date to be determined;



      c.  the United Nations Service Medal is awarded to members of the
Armed Forces of the United States dispatched to Korea or adjacent areas on
behalf of the United Nations between 27 June 1950 and 27 July 1954.  Award
of the Korean Service Medal automatically establishes eligibility for award
of the United Nations Service Medal; and


      d.  the Government of the Republic of Korea issued the Korean War
Service Medal (ROK-KWSM) to pay tribute to eligible Korean War veterans for
their historic endeavors to preserve the freedom of the Republic of Korea
and the free world.  The Department of Defense approved acceptance and wear
of the ROK-KWSM.  To qualify for award of the ROK-KWSM, the veteran must
have served between 25 June 1950 and 27 July 1953 and been on permanent
assignment for 30 consecutive days, or on temporary duty for 60 non-
consecutive days, within the territorial limits of Korea, in the waters
immediately adjacent thereto, or in aerial flight over Korea participating
in actual combat operations or in support of combat operations.

14.  Title 38, United States Code, sections 310 and 331, permits the VA to
award compensation for a medical condition which was incurred in or
aggravated by active military service.  While both the Army and the VA use
the VA Schedule for Rating Disabilities (VASRD), not all of the general
policy provisions set forth in the VASRD apply to the Army.  The Army rates
only conditions which are determined to be physically unfitting for further
military service thereby compensating the individual for the loss of his or
her military career.  The VA, however, may rate any service-connected
impairment, thus compensating for loss of civilian employment.  Therefore,
it is not unexpected that these two different systems would produce
different evaluations.  Furthermore, the VA can evaluate a veteran
throughout his lifetime, adjusting the percentage of disability based upon
that agency's examinations and findings.



DISCUSSION AND CONCLUSIONS:

1.  The FSM’s military records clearly show he was wounded in action and
awarded the Purple Heart for these wounds.  His military records, including
his DD Form 214, properly document his wounds, medical retirement, and
award of the Purple Heart.

2.  The only document that does not support this finding is the Indiana
education form.  This form is a state record and not subject to correction
by this Board. There is no error in the military records to correct and the
issue is moot.

3.  There is insufficient evidence to show that, at the time of his
transfer to the Retired List, the FSM had a medical condition that was
evaluated at greater than the 30 percent level afforded him by the PEB.
The fact that the applicant received a higher evaluation by the VA, 20
years later, does not indicate the military evaluation was in error.

4.  Although there is no automatic entitlement to the Good Conduct Medal,
disqualification must be justified.  The record contains no indication of
any disqualifying incidents or recommendations.  It is appropriate to award
the applicant the Good Conduct Medal for his period of service from 26
February 1951 through 31 May 1952.

5.  In addition to the awards listed on his DD Form 214, the FSM is also
authorized award of the National Defense Service Medal, the United Nations
Service Medal, the Republic of Korea - Korean War Service Medal, and the
Marksman Marksmanship Qualification Badge with Rifle and Carbine Bars.  It
is appropriate to correct the record to reflect these awards.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

_EEM___  __JCR__  __JTM___  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 and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by:

      a.  awarding the FSM the Good Conduct Medal for the period from
26 February 1951 through 31 May 1952; and


      b.  by showing that in addition to the awards listed on his DD Form
214, the FSM is also authorized award of the National Defense Service
Medal, the United Nations Service Medal, the Republic of Korea - Korean War
Service Medal, and the Marksman Marksmanship Qualification Badge with Rifle
and Carbine Bars.

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
a higher disability evaluation.



                            __      John T. Meixell__________
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017127                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060727                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |Grant                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]