RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2007
	DOCKET NUMBER:  AR20060014396 


	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. Gerard W. Schwartz

Acting Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. Paul M. Smith

Chairperson

Mr. David K. Haasenritter

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 correction of his Report of Separation from the Armed Forces of the United States (DD Form 214) to show that he was assigned for duty with the 13th Combat Construction Engineer Battalion, and was awarded the Medal of Honor, Purple Heart and five bronze service stars on his Korean Service Medal.   

2.  The applicant states, in effect, that he spent all of his time in the 13th Combat Construction Engineer Battalion.  He says that he spent 18 months in Japan and 9 months on the front lines in the Republic of Korea.  He further states that he fell off of a Sherman Tank during an ambush and hurt his right knee. 

3.  The applicant provides no additional documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 May 1952, the date of his discharge.  The application submitted in this case is dated 25 September 2006.

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 applicant's military records are not available for review.  A fire destroyed approximately 18 million service member's records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, there are sufficient documents available to conduct a fair and impartial review of this specific request. 

4.  The applicant requests correction of his records to show award of the Medal of Honor.  There are no orders or other evidence authorizing this award to the applicant.  In the absence of a proper award authority for this decoration, the applicant may request award of the Medal of Honor under the provisions of Section 1130 of Title 10, United States Code.  The applicant has been notified by separate correspondence of the procedures for applying for this decoration under Section 1130 and, as a result, it will not be discussed further in this Record of Proceedings. 

5.  The applicant's DD Form 214 shows that he enlisted in the Regular Army on 23 November 1948.  He completed his initial training and was subsequently assigned overseas.

6.  Item 25 (Foreign and/or Sea Service) of the applicant's DD Form 214 shows that he served overseas for a total of 2 years and 3 months.  It does not provide specific dates or places associated with this overseas service.

7.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows his awards as the Army of Occupation Medal with Japan Clasp, the Korean Service Medal with three bronze service stars, and the Republic of Korea Presidential Unit Citation.   It does not show award of the Purple Heart.

8.  On 31 May 1952, the applicant was honorably discharged.  He attained the rank of private first class and had completed 3 years, 7 months and 7 days of creditable active service.

9.  The applicant's name does not appear on the Korean War Casualty List as a combat casualty.

10.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

11.  Review of the applicant's available records indicates entitlement to additional awards and decorations that are not shown on his WD AGO 53-55 or his DD Form 214.

12.  Army Regulation 600-8-22 provides, in pertinent part, that 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.



13.  Army Regulation 600-8-22 provides for award of the United Nations Service Medal.  In pertinent part, the regulation states that the period of eligibility for the United Nations Service Medal was between 27 June 1950 and 27 July 1954.  The regulation provides that this service medal was awarded to members of the Armed Forces of the United States dispatched to Korea or adjacent areas on behalf of the United Nations.  Award of the Korean Service Medal automatically establishes eligibility for award of the United Nations Service Medal. Army Regulation 600-8-22 as amended provides that 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.  This regulation also provides that the second and subsequent awards of the National Defense Service Medal are denoted by a bronze service star affixed to the National Defense Service Medal.

14.  Army Regulation 600-8-22 provides for award of the Republic of Korea War Service Medal (KWSM).  In pertinent part, the regulation states that the KWSM is awarded to members of the U.S. Armed Forces who served in Korea and adjacent waters between 25 June 1950 and 27 July 1953. The service prescribed must have been performed as follows: (1) While on permanent assignment; or
(2) While on temporary duty within the territorial limits of Korea or on waters immediately adjacent thereto for 30 consecutive days or 60 nonconsecutive days; or (3) While as crew members of aircraft, in aerial flight over Korea participating in actual combat operations or in support of combat operations. 

DISCUSSION AND CONCLUSIONS:

1.  There is no available evidence to show that the applicant was awarded the Purple Heart.   Furthermore, there is no evidence showing that he was wounded as a result of hostile action or that any such wounds were given medical treatment.  Therefore, the applicant's request for award of the Purple Heart should not be granted.

2.  Because the applicant's records are no longer available, his contention that he served with the 13th Combat Construction Engineer Battalion cannot be verified. Therefore, his request to correct his records to show this assignment should not be granted.

3.  The applicant's records are not available to determine the exact dates of his service in the Republic of Korea.  Therefore, the accuracy of the entry on his DD Form 214 pertaining to his three bronze service stars cannot be determined.  The Board, therefore, must presume regularity, and not grant his request for five bronze service stars.  

4.  The applicant's DD Form 214 shows that he was awarded the Korean Service Medal.  Therefore, he is authorized award of the National Defense Service Medal and the United Nations Service Medal and the Republic of Korea War Service Medal.  He records should be corrected to show these three awards.

5.  Evidence shows that the applicant’s records contain administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

6.  Evidence shows the applicant should have discovered the alleged error or injustice now under consideration on 31 May 1952; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
30 May 1955.  The applicant did not file within the 3-year statute of limitations and has not provided 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__PMS__  __DKH  __  __EEM__  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 award of the Purple Heart and 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 individual should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned by showing he was awarded the National Defense Service Medal, United Nations Service Medal, and the Republic of Korea War Service Medal.





_        _Paul M. Smith___
          CHAIRPERSON




INDEX

CASE ID
AR20060014369
SUFFIX

RECON
 
DATE BOARDED
20070501
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
  . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
120.000
2.
107
3.

4.

5.

6.