IN THE CASE OF:	  

	BOARD DATE:	  15 May 2008

	DOCKET NUMBER:  AR20080004081


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 award of the Silver Star.  

2.  The applicant states that another Soldier who served with him at the time, and whose sworn statement is enclosed, was awarded the Silver Star for the same act that he (the applicant) performed.  

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  Two DA Forms 2823 (Sworn Statement), dated 8 March 2007 and 30 April 2007. 

	b.  Handwritten recommendation for award of the Silver Star, dated 18 December 1980, unknown author.

	c.  Letter, dated 27 July 1999, from a State of South Carolina official, to a Member of Congress, describing the loss of military records during the Korean War.

	d.  Certificate, dated 22 December 1986, showing award of the Purple Heart.


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 applicant’s records show that he enlisted in the Regular Army for a period of 3 years on 8 December 1949.  He was trained in military occupational specialty (MOS) 2283 (Physical Activities Specialist).  He was honorably released from active duty on 8 December 1952.  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.  

3.  The DD Form 214 he was issued shows he completed a total of 3 years and 1 day of creditable military service, of which 1 year, 3 months, and 22 days was foreign service.  In Korea, he was assigned to Service Battery, 555th Field Artillery Battalion.

4.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of this form shows he was awarded the Korean Service Medal with five bronze service stars, the United Nations Service Medal, and the Purple Heart.  Item 27 does not show award of the Silver Star. 

5.  There are no general orders in the applicant’s records that show award of the Silver Star.  

6.  The applicant submitted two sworn statements from eyewitnesses who were present at the time.

	a.  In one statement, the driver of a vehicle in an ammunition convoy of Service Battery, 555th Field Artillery Battalion, states that, on 11 August 1950, he was heading north, from Masan, Korea, to a bivouac site in a riverbed near the village of Pongnam-ni, Korea, to spend the night.  The site was surrounded on three sides by high hills and mountains, and was separated from the rice paddies and the village by a wall.  At dark, the site started taking enemy mortar rounds.  He [the driver] ran for cover against a wall at the edge of the riverbed, where he observed the applicant standing against the wall firing his 3.5 inch bazooka in the direction of the village while exposing himself to enemy fire.  The applicant was doing this to keep the enemy from entering the unit position while the rest of the unit loaded the casualties in an effort to evacuate the site.  The driver concludes that the applicant went beyond the call of duty to save his friends that day.

	b.  In a sworn statement, a U.S. Navy (USN) officer, and holder of the Silver Star for the same action in which the applicant participated, states that he arrived in Pusan, Korea, in July 1950, and was immediately involved in combat action.  On 12 August 1950, his unit was in Pongnam-ni, Korea, with the 5th Marine Regiment on the left and the 24th Infantry Regiment, 25th Infantry Division, on the right.  He was on guard duty at the edge of the village facing a rice paddy, when he noticed the enemy attempting to infiltrate the unit perimeter. Unit members exchanged fire with the enemy and the Navy officer proceeded to the left of the village where he came across a Service Battery ammunition convoy pinned down by enemy fire.  He further adds that he saw the applicant loading and firing a 3.5 inch rocket launcher at the enemy.  The US forces remained pinned down for the rest of the morning without any relief, and casualties mounted.  An enemy round hit a truck of ammunition catching it on fire, so he [Navy officer] got in the truck and moved it away from the other loaded ammunition trucks.  As he returned to the creek bank, a Soldier who was loading the bazookas for the applicant took a hit, so he [Navy officer] took over the loading while the applicant continued the firing.  Later that afternoon, he and the applicant loaded the wounded on a truck and directed the truck to leave the area while he and the applicant remained behind to provide covering fire.  Once the truck had safely departed, the Navy officer and the applicant drove in a jeep through the village while the enemy fired at them from all directions.  Despite being wounded, the Navy officer continued driving out of the village until he lost control of the jeep on the wet, muddy ground.  He and the applicant were thrown from the jeep and were subsequently rescued by a friendly armored unit and sent back to the rear.  The applicant was evacuated to a USN hospital.  The Navy officer concludes that he was awarded the Silver Star for his actions on that day and believes the applicant should have been similarly recognized.

7.  The applicant submitted a letter, dated 27 July 1999, authored by a State official whose husband had commanded the applicant’s unit, the 555th Field Artillery Battalion, from August 1950 through December 1951.  The former commander stated that he "regrets that more recognition with awards and medals was not accomplished within the Bn.  The Battery Commander and I made a special effort to 'write them up' but the Division returned the bulk as too many at the time.  So we adopted the strategy of submitting a lesser number at a time.  Then in April we lost the paperwork in the Adjutant’s trailer---and there after found it difficult to reconstitute the recommendations in the numbers deserved.  While we may know of and agree with the fine work of many individuals, we should have awarded more awards and official recognition.”

8.  The applicant submitted a handwritten recommendation for award of the Silver Star, dated 18 December 1950, authored by an unknown person.  The applicant re-typed this recommendation as follows:

On 12 August 1950, between 0530 hours and 1345 hours, 200 yards south of Pongnam-ni, Korea, in a creek bed, the battalion command post (CP) came under enemy artillery and small arms fire. The applicant was a member of the ammunition train, trying to get ammunition to one of the batteries.  When he arrived in the vicinity of the creek bed, he recognized the danger of the situation, and picked up a 3.5 inch rocket launcher and with help from another man loading the launcher, the applicant poured rocket fire at the enemy, thus preventing the enemy from penetrating the front lines.  The applicant and his loader were both exposed to enemy fire from mortar and automatic weapons from the east and west and sniper fire from the south.

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

10.  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.

11.  Review of the applicant's records indicates his entitlement to additional awards that are not shown on his DD Form 214.

12.  Army Regulation 600-8-22 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.  
13.  Army Regulation 672-5-1, in effect at the time, provided policy and criteria concerning individual military decorations.  It stated that the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940 and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  At the time, a Soldier's conduct and efficiency ratings must have been rated as "excellent" for the entire period of qualifying service except that a service school efficiency rating based upon academic proficiency of at least "good" rendered subsequent to 11 November 1956 was not disqualifying.  However, there was no right or entitlement to the medal until the immediate commander made a positive recommendation for its award and until the awarding authority announced the award in General Orders.

14.  Army Regulation 600-8-22 states that the Republic of Korea War Service Medal 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; (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.  The applicant requests award of the Silver Star.  He believes he is entitled to the Silver Star because a recommendation was made, and another serviceman who served with him received the Silver Star for the same act.

2.  The applicant provided a sworn statement from a retired US Navy officer who was present on 12 August 1950 near the village of Pongam-ni, Korea, when the applicant's unit was attacked by enemy forces.  The retired Naval officer states he was awarded the Silver Star for his actions on 12 August 1950, actions which included driving a burning ammunition truck away from other ammunition trucks.  The naval officer states, after he moved the burning truck, he assisted the applicant in fighting off the enemy troops who were attempting to infiltrate and overrun the American perimeter.

3.  It is the duty and responsibility of commanders at the time of a Soldier's act, or shortly thereafter, to determine whether a Soldier's actions were so extraordinary and so noteworthy as to warrant award of a specific decoration.  In this case, the former battalion commander has made a general statement that the unit should have recognized more individual acts, but he does not specifically comment on the applicant's acts of 12 August 1950, or his entitlement to a particular decoration.  Now after almost fifty eight years have passed, it is impossible to ascertain the decision process used by the commander to evaluate the worthiness of particular acts of valor.

4.  The applicant provided two eyewitness statements.  Generally, witness statements do not overcome the presumption of regularity and the absence of any military records which indicate the applicant was recommended for or awarded the Silver Star for the events that took place on 12 August 1950.  Also, the acts of one man who was awarded the Silver Star cannot be used as justification for awarding another man the same decoration.  In the case of the Naval officer, it is quite possible he was awarded the Silver Star for risking his life by jumping into a burning ammunition truck and driving it away from other trucks loaded with explosives.  The applicant's actions, although highly meritorious, did not include such an act of bravery with no regard for his own personal welfare.  Thus, the two situations may not be deemed similar enough to warrant the same decoration for both men. 

5.  While the available evidence is insufficient for awarding the applicant the Silver Star, this in no way affects the applicant’s right to pursue his claim for the Silver Star by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

6.  The evidence of record shows that the applicant served a qualifying period for award of the National Defense Service Medal; therefore, he is entitled to correction of his records to show this award.

7.  The evidence of record confirms that the applicant served honorably during the period 8 December 1949 through 7 December 1952.  He served in combat in Korea, participated in five campaigns during the Korean War, and was awarded the Purple Heart for wounds received in action.  Lacking any derogatory information on file that would have disqualified him, it would be appropriate to award the applicant the first award of the Good Conduct Medal based on completion of qualifying service ending with the termination of a period of Federal military service.  Therefore, he is entitled to correction of his records to show award of the Good Conduct Medal.

8.  Although the applicant’s dates of service in Korea are not known, his DD Form 214 shows he completed 1 year, 1 month, and 22 days of foreign service; was awarded the Korean Service Medal with five campaign service stars, and was wounded in action in Korea.  It appears that he served a qualifying period for award of the Republic of Korea War Service Medal, which 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, and is therefore entitled to correction of his records to show this award.

9.  The applicant's valor and courage on 12 August 1950 under extremely hazardous conditions is laudable; he is truly an American hero.  However, the decision of whether to award an individual a decoration and which decoration to award is a judgment call best made by the commander having award approval authority at the time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__xxx___  __xxx___  __xxx___  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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  awarding the applicant the Good Conduct Medal (1st Award) for exemplary behavior, efficiency, and fidelity during the period 8 December 1949 through 7 December 1952; and

	b.  showing award of the Good Conduct Medal (1st Award), the National Defense Service Medal, and the Republic of Korea War Service Medal, on his DD Form 214, dated 8 December 1952.  
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 the Silver Star.



								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)                                         AR20080004539



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR20080004081



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508