IN THE CASE OF:	  

		BOARD DATE:	        9 April 2009

		DOCKET NUMBER:  AR20080018178 


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, in effect, that the words "Not Verified" for awards of the Purple Heart (PH) and the Combat Infantryman Badge (CIB) [annotated as "CIBAD" on his DD Form 214 (Report of Separation from the Armed Forces of the United States), with the period ending 14 October 1953], be deleted.

2.  The applicant states he was injured and captured by enemy forces on 22 April 1951.  He further states that his DD 214 indicates that his awards of the PH and CIB are not verified; however, the PH and the CIB were mailed to him in March 1990.  The applicant continues that he earned these awards on the battlefield.  He states the Kentucky Veterans Cemetery will not allow the Purple Heart to be placed on his tombstone because of the "Not Verified" comments on his DD Form 214.

3.  The applicant provides his DD Form 214 with the period ending 14 October 1953 and a DA Form 1577 (Authorization for Issuance of Awards), dated 
22 March 1990.

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 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 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 applicant’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.  

3.  The applicant served in the Regular Army from 4 October 1946 to 4 March 1948.  He was assigned to the Infantry Branch and served with Company C, 21st Infantry Regiment in Japan, where he performed occupation duty as a message center clerk.  His WD AGO Form 53 (Enlisted Record and Report of Separation -  Honorable Discharge) shows he was awarded the World War II Victory Medal, the Army of Occupation Medal with Japan Clasp, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-1).  Upon separation, he enlisted in the Infantry Reserve as a Private First Class.

4.  At the outbreak of the Korean War, the applicant was recalled to active duty as an infantryman on 25 October 1950.  Following re-training, he was transferred to Korea for assignment to Company C, 5th Infantry Regiment (Regimental Combat Team), 24th Infantry Division, where he served as an infantryman.  During the time from the applicant's assignment to Korea and his capture as a prisoner of war (POW), he was credited with participation in the following five campaigns:  United Nations (UN) Defensive (25 June – 15 September 1950);  UN Offensive(16 September – 2 November 1950); Chinese Communist Forces (CCF) Intervention (3 November 1950 – 24 January 1951); First UN Counteroffensive (25 January – 21 April 1951); and CCF Spring Offensive       (22 April – 8 July 1951).

5.  A National Archives and Records Administration (NARA) Korean War Casualty File record shows the applicant was captured and became a POW on 23 April 1951 while serving as a light weapons infantryman.  He was held by 


hostile forces until after the armistice was signed on 27 July 1953.  He was repatriated on 15 August 1953.

6.  The applicant’s DD Form 214 for the period ending 14 October 1953 shows he received a shell fragment wound (SFW) to his chin on 22 April 1951.  It also shows he was awarded the Korean Service Medal with 7 bronze service stars, the National Defense Service Medal, and the United Nations Service Medal.  It also shows award of the PH and the CIB, but these awards are annotated as “Not Verified.”

7.  On 22 March 1990, the Army Reserve Personnel Center (ARPERCEN), St. Louis, MO, issued the applicant a DA Form 1577 showing the PH, the Good Conduct Medal (2nd Award), the World War II Victory Medal, the Army of Occupation Medal with Japan Clasp, the National Defense Service Medal, the Korean Service Medal with 1 silver service star and 2 bronze service stars, the CIB, the United Nations Service Medal, the World War II Honorable Service Lapel Button, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-1).  The U.S. Army Support Activity, Philadelphia, PA, was directed to issue the above awards and badges to the applicant.

8.  Army Regulation 600-8-22 (Military Awards) sets forth Department of the Army criteria, policy and instructions concerning individual military awards, the Good Conduct Medal, service medals and service ribbons, combat and special skill badges and tabs, unit decorations, and trophies and similar devices awarded in recognition of accomplishments.  It provides, in effect:

	a.  that the PH is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that:  (1) the wound was the result of hostile action; (2) the wound required medical treatment by medical personnel; and (3) the medical treatment was made a matter of official record;

	b.  that during World War II and the Korean War, the PH was not awarded to Soldiers who had been injured while in captivity or while being taken captive.  These injuries were considered to be the result of war crimes and not the result of a legal action of war.  War Department policy at that time required that wounds must have been received while in actual combat against the enemy.  Executive Order 11016, dated 25 April 1962, provided more latitude with respect to award of the PH to POWs and to Soldiers wounded in the absence of a formal declaration of war.  The issue as to whether this change in policy would be implemented retroactively to prisoners of war from World War I, World War II, 


and the Korean War was considered several times.  Initially it was decided that the change in policy would not be retroactively implemented.  It was concluded that it would be inappropriate for the Department of Defense to retroactively change the standards and, in effect, countermand the decisions of the past leadership.  However, as part of the National Defense Authorization Act (NDAA) of 1996, Congress authorized award of the PH retroactively to any former POW who was wounded before 25 April 1962 while being held as a POW or while being taken captive;

	c.  	that the Korean Service Medal is awarded for qualifying service in the theater of operations between 27 June 1950 and 27 July 1954.  One bronze service star is authorized for each campaign (or one silver service star in lieu of five bronze service stars) while assigned or attached to and present for duty with 
a unit during the period in which it participated in combat; or under orders in the combat zone and is awarded a combat decoration, furnished a certificate by a general officer that confirms actual participation in combat, or served at a normal post of duty.  It further states that POWs will not be accorded credit for the time spent in confinement or while otherwise in restraint under enemy control;

	d.  that there are three basic requirements for award of the CIB.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.  Specific requirements state, in effect, that an Army enlisted Soldier must be have an infantry or special forces specialty, satisfactorily performed duty while assigned or attached as a member of an infantry, ranger or special forces unit of brigade, regimental, or smaller size during any period such unit was engaged in active 
ground combat.  A recipient must be personally present and under hostile fire while serving in an assigned infantry or special forces primary duty, in a unit actively engaged in ground combat with the enemy;

9.  Review of the applicant's records indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.  Army Regulation
600-8-22 further provides, in effect:

   a.  following World War II, the 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;

   b.  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; and

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

10.  The DA Form 1577 authorizes issuance of decorations, medals, unit citations, and badges.  Army Regulation 600-8-104 (Military Personnel Information Management/Records) governs entries made in military personnel records, and, in pertinent part, this regulation states that, for U.S. military decorations and awards, the only acceptable source documentation is the order, letter, or memorandum which awards the decoration.  As a result, the DA Form 1577 is not sufficient as a basis for entitlement to a military award or for correction of military records to show a military award.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the words "Not Verified" for awards of the Purple Heart and the Combat Infantryman Badge be deleted from his DD Form 214.

2.  Originally, the Purple Heart was not awarded to Soldiers who had been injured while in captivity or while being taken captive.  These injuries were considered to be the result of war crimes and not the result of a legal action of war.  This interpretation may explain why the entry “PH Not Verified” is entered on his DD Form 214.  However, his DD Form 214 clearly shows he received a shell fragment wound to his chin on 22 April 1951, a day prior to his capture.  Even under the old, restrictive rules governing award of the Purple Heart, his 


award should have been “verified” without question.  Under current standards, 
there is no question he qualified for award of the Purple Heart.  Given the above, the words “Not Verified” should be removed from his DD Form 214 next to the entry “PH.”

3.  The applicant was an infantryman with an infantry military occupational specialty; he was serving in an infantry unit – Company C, 5th Regimental Combat Team – during the Korean War; and he was wounded in action and 
taken prisoner, thus confirming that he actively participated in active ground combat.  Therefore, the words “Not Verified” should be removed from his DD Form 214 adjacent to the entry “CIBAD.”

4.  The applicant served a qualifying period for the first award of the Good Conduct Medal during the period from 25 October 1950 to 14 October 1953.  There is no evidence of any disqualifying factor or commander's disqualification that would preclude the applicant from being awarded the first award of the Good 
Conduct Medal.  As a matter of record, the applicant served a majority of this period of service in a POW status.  Therefore, it would be appropriate at this time to award the applicant the first award of the Good Conduct Medal and to correct his records to show this award.

5.  The applicant was a POW from 23 April 1951 to 15 August 1953.  Therefore, he is entitled to award of the POW Medal and to have this award added to his DD Form 214.

6.  The applicant served in Korea during a qualifying period for the recently- approved ROKWSM.  Therefore, he is entitled to this award and to have this award added to his DD Form 214.

7.  The applicant was awarded the World War II Victory Medal, the Army of Occupation Medal (Japan), and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-1) during his first period of service.  Therefore, these awards should be transferred to his DD Form 214 for the period ending             14 October 1953.

8.  The DA Form 1577 submitted by the applicant, in effect, shows the authorization for issuance of the Good Conduct Medal (2nd award).  Subsequent to World War II, the provisions of Army Regulation 600-8-22 required that for the first award only based on termination of service of less than 3 years but more than 1 year, the Soldier must have been separated on or after 27 June 1950.  Therefore, the applicant was not eligible for an award of the Good Conduct Medal for his first period of active duty service which extended from 4 October 1946 to 4 March 1948.  However, the applicant is entitled to the first award of the Good Conduct Medal for his second period of service from 25 October 1950 to
14 October 1953.  There is no evidence of a prior correction to the applicant's DD Forms 214 to show addition of the Good Conduct Medal.  Therefore, notwithstanding the DA Form 1577, which in and of itself is not sufficient as a basis for entitlement to a military award or for correction of military records to show a military award, the applicant's records should be corrected to show the Good Conduct Medal (first award).

9.  The DA Form 1577 submitted by the applicant, in effect, shows the authorization for issuance of the KSM with 1 silver service star and two bronze service stars [equivalent to 7 bronze service stars].  His DD Form 214 for the period ending 14 October 1953 shows the KSM with 7 bronze service stars.  However, evidence of record shows the applicant is only entitled to the KSM with 1 silver service star [equivalent to five bronze service stars].  Although the number of bronze service stars reflected on the DA Form 1577 and the DD Form 
214 appear to be incorrect, it is the policy of the ABCMR not to make an applicant worse off than when he/she applied to the Board.  Therefore, the KSM with 7 bronze service stars will remain as entered on his DD Form 214 for the period ending 14 October 1953.

BOARD VOTE:

___X____  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting from item 27 of the applicant's DD Form 214 for the period ending 14 October 1953, the entries "PH Not Verified" and "CIBAD Not Verified";
 
	b.  awarding the applicant the Good Conduct Medal (first award) for the period from 25 October 1950 to 14 October 1953; and

	c.  adding to item 27 of his DD Form 214 for the period ending 14 October 1953 the Purple Heart, Prisoner of War Medal, Good Conduct Medal (first award), World War II Victory Medal, Army of Occupation Medal with Japan Clasp, National Defense Service Medal, United Nations Service Medal, Republic of Korea War Service Medal, Combat Infantryman Badge, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-1).


															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)                                         AR20080018178



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ABCMR Record of Proceedings (cont)                                         AR20080018178



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