IN THE CASE OF:	

		BOARD DATE:	  15 January 2009

		DOCKET NUMBER:  AR20080013999 


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, as the widow of a former service member (FSM), requests correction of her husband's DD Form 214 (Report of Separation from the Armed Forces of the United States) to show award of the Silver Star, the Purple Heart, the Prisoner of War (POW) Medal, the Korean Service Medal, and the Korean War Service Medal issued by the Republic of Korea.

2.  The applicant states that the FSM was given orders for a special mission on 5 January 1953.  She states that the FSM and other Soldiers were trained and they performed their mission.  She also states that the FSM was taken as a prisoner of war for a short period of time.  The FSM was able to gain his freedom and his mission was completed.  He was told that he would receive recognition for his actions.  

3.  The applicant provides a copy of the FSM's DD Form 214; the FSM's death certificate; and the FSM's journal concerning his special mission.  

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 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 in 1973.  It is believed that the FSM's records were lost or destroyed in that fire.  However, the applicant provided sufficient documents for the Board to conduct a fair and impartial review of this case.

3.  The FSM's DD Form 214 shows he entered active duty on 11 April 1951 and was honorably discharged on 10 January 1954.  His DD Form 214 shows he completed 1 year, 1 month, and 1 day of foreign service.

4.  His DD Form 214 only shows the National Defense Service Medal as an authorized award.  

5.  There are no orders or evidence available which authorize award of the Silver Star or the Purple Heart to the applicant.  

6.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) on his DD Form 214 shows the entry "None."  The FSM's name is not listed on the Korean Casualty Roster.

7.  The U.S. National Archives and Records Administration database contains records of American Prisoners of War during the Korean War documenting the period 5 July 1950 through 6 October 1954.  This database does not show the FSM was a POW during the Korean War.  

8.  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.

9.  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 by medical personnel, and the medical treatment must have been made a matter of official record.

10.  Army Regulation 600-8-22 provides, in pertinent part, for award of the POW Medal.  The regulation states that the POW Medal was authorized on 8 November 1985 and is awarded to individuals who in past armed conflicts 
were taken prisoner or held captive.

11.  Army Regulation 600-8-22 provides for award of the Korean Service Medal.  In pertinent part, the regulation states that the Korean Service Medal is awarded for qualifying service in the theater of operations between 27 June 1950 and 27 July 1954.

12.  Army Regulation 600-8-22 states that the Republic of Korea War Service Medal (ROKWSM) is awarded to members of the U.S. Armed Forces who served in Korea and adjacent waters between 25 June 1950 and 27 July 1954.  The service prescribed must have been performed as follows:

   a.  while on permanent assignment;

   b.  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 

   c.  while as crew members of aircraft, in aerial flight over Korea participating in actual combat operations or in support of combat operations. 

13.  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.

DISCUSSION AND CONCLUSIONS:

1. There are no orders, certificate or any other evidence available which indicate the FSM was awarded the Silver Star.  Regrettably, there is insufficient evidence on which to base correction of his records to show award of the Silver Star.  
2.  While the available evidence is insufficient for awarding the FSM a Silver Star, this in no way affects the applicant’s right to pursue her claim on behalf of the FSM for the Silver Star by submitting a request through her Member of Congress under the provisions of 10 USC 1130.

3.  There are no orders which authorize award of the Purple Heart to the FSM.  His name is not listed on the Korean Casualty Roster.  By regulation, in order to award the Purple Heart it is necessary to establish that a Soldier was wounded in 
action, that the wound required treatment by a medical officer, and the treatment record must have been made a matter of official record.  Regrettably, he has not met the requirements for award of the Purple Heart.

4.  The applicant stated that the FSM was a POW for a short period of time and that he was told he would receive recognition for his actions.  However, there is no evidence available and the records at the National Archives fail to reveal that the FSM was a POW.  Regrettably, there is insufficient evidence to show he was held as a POW during the Korean War and insufficient evidence to show he has met the requirements for award of the POW Medal.

5.  The FSM's journal concerning  his special mission was noted.  Unfortunately, this document alone is insufficient evidence on which to base correction of his records to show awards for service in Korea.  Regrettably, there is insufficient evidence to correct his records to show award of the Korean Service Medal and the ROKWSM.

6.  If the applicant could obtain corroborating documents (such as morning reports or orders) showing the FSM served in Korea, she may reapply to the Board for reconsideration of her request to add the appropriate service medals to the FSM's DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X___  ____X___  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

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.




      _______ _   X_______   ___
               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)                                         AR20080013999





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ABCMR Record of Proceedings (cont)                                         AR20080013999



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