IN THE CASE OF:	  

		BOARD DATE:	       19 March 2009

		DOCKET NUMBER:  AR20090000556 


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 reconsideration of his earlier request for correction of his DD Form 214 (Report of Separation from the Armed Forces of the United States) to show award of the Purple Heart with three Oak Leaf Clusters and the  Army Good Conduct Medal; and to show his unit as Company C, 8th Engineer Combat Battalion.  He also requests, as a new issue, correction of his DD Form 214 to show award of the Bronze Star Medal with "V" Device.

2.  The applicant states, in effect, that he is very disappointed with the Board's decision in his original case.  He does not understand how a person with a responsible job could not have taken the time to read and evaluate all of the evidence that he had collected.  He would appreciate it if the Board would consider the highlighted areas in his reports, letters, etc.  He is sure that the Board will agree with him that there has been a great injustice in his case.  

3.  The applicant provides, in support of his application, copies of his DD Form 214; Certification of Military Service, dated 17 August 1983; Honorable Discharge Certificate, dated 5 September 1956; NME Form 2A (U.S. Army Reserve Identification Card); Notification of Birth Registration, dated 4 January 1932; Army Board for Correction of Military Records (ABCMR) cover letter, dated
11 September 2008 and Record of Proceedings, dated 9 September 2008, with a copy of his previous DD Form 149 (Application for Correction of Military Records Under the Provisions of Title 10, U.S. Code, section 1552), dated 9 September 



2008; handwritten Chronology of Military Service; Letters to the Board, dated 
31 May 2008 and 22 September 2008, with two addendums dated 25 September 2008; two photographs; a four-page, undated, addendum to materials submitted on 11 December 2008 with pages 219 through 227 from an unidentified publication; a letter, dated 16 February 2009; five letters dated in 1951 and 1952; Headquarters, 45th Infantry Division, Special Orders Number 136, dated 15 May 1952; Medical Clearance Certificate, dated 20 May 1952; Headquarters, SASEBO Replacement Depot Customs Declaration, dated 30 May 1952; Certificate of Membership in the 1st Cavalry Division Association, undated; Letter to the applicant from the National Personnel Records Center, St. Louis, MO, dated 6 December 2006; photocopy of four government supply stock boxes that contained labels for the National Defense Service Medal, Korean Service Medal, United Nations Service Medal, and the Army Good Conduct Medal; NA Form 13055 (Request for Information Needed to Reconstruct Medical Data), dated
22 January 2007; VA [Department of Veterans Affairs] Form 21-4142 (Authorization and Consent to Release Information to the VA), dated 28 May 2008; and his VA Rating Decision, dated 19 November 2007 and 17 March 2008.   

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080009439, on 9 September 2008.

	a.  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.  

	b.  In the original case, the Board determined that the available evidence was sufficient to warrant partial relief.  It therefore recommended correction of the applicant's DD Form 214 to show his date of birth as 4 January 1932, and that he was authorized the National Defense Service Medal and the Republic of Korea War Service Medal.  It denied his request to show award of the Purple Heart, Army Good Conduct Medal, and the 8th Engineer Combat Battalion as his most significant duty assignment on his DD Form 214. 



2.  The applicant highlighted many areas on the various documents he submitted with his application and made additional comments regarding these areas.  All of his comments and areas of concern have been carefully read and analyzed.  Each issue will be addressed separately.

3.  The applicant provided photographs purporting to be him.  One photograph reportedly shows the applicant with his arm bandaged and standing next to two other Soldiers in pajamas.  Information written on the back of the photograph identifies the scene as a Red Cross function in the 4th Field Hospital in Taegu, Korea in 1951. The other photograph reports to be the applicant at age 75 in 2007.  Both photographs show the respective individual with a similar tattoo on the left forearm.  The applicant concludes that the tattoo shows that he is the individual in the earlier photograph.

4.  There is no available evidence of an official nature showing that he was wounded in action or that he received any medical treatment for such wounds. 

5.  The applicant’s name does not appear on the Korean Casualty Roster.  

6.  In support of his claim for four awards of the Purple Heart, the applicant provided VA Rating Decisions which show that service-connection was granted for bilateral hearing loss (20 percent), tinnitus (10 percent), a right forearm scar (0 percent), and left chin scar (0 percent).  There is no direct evidence in this document showing that he received any of these injuries while in action against the enemy or as a result of hostile action.

7.  Army Regulation 600-8-22 (Military Awards) 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.  The regulation states, in pertinent part, that the bronze Oak Leaf Cluster is awarded to denote the second and succeeding awards of the Purple Heart.

8.  There is no documentary evidence of an official nature showing that the applicant was recommended for or awarded the Bronze Star Medal.  The applicant stated in his 31 May 2008 letter to the Board that he had sustained an injured right shoulder and shrapnel wound to his chin while helping another injured Soldier.  He contends that the duty officer told him he would receive a Purple Heart and Bronze Star Medal for his actions that day. 


9.   Army Regulation 600-8-22, paragraph 3-13 provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  There are regulatory provisions for lost recommendations but not for late recommendations, reconsideration, nor for upgrading to a more prestigious award.  The regulation further provides, in pertinent part, that the bronze “V” Device indicates acts of heroism involving conflict with an armed enemy and authorizes the bronze “V” Device in conjunction with awards of the Army Commendation Medal, the Air Medal, and the Bronze Star Medal.  

10.  Title 10, U.S. Code, section 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.  The 6 December 2006 letter from the National Personnel Records Center in St. Louis, shows, in pertinent part, that he is authorized the Army Good Conduct Medal.   However, the letter does not provide any rationale or supporting data used as the basis for showing that the applicant qualified for this award.

12.  There is no available evidence of record showing that the applicant met the qualifications in effect at the time for award of the Army Good Conduct Medal.

13.  Army Regulation 600-65 (later superseded by Army Regulation 672-5-1), in effect at the time, provided policy and criteria concerning service medals.  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, for first award only, 1 year served entirely during the period 
7 December 1941 to 2 March 1946 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 and there must have been no convictions by court-martial.

14.  The letters provided by the applicant, dated in 1951 and 1952, show that he was assigned to Company C, 8th Engineer Combat Battalion from an unknown date until sometime between 5 December 1951 and 18 January 1952.  By 
19 January 1952, the applicant was assigned to Company C, 120th Engineer Combat Battalion, 45th Infantry Division.  He remained with this unit until his processing for separation in May 1952. 

15.  Special Regulations Number 615-360-1 (Enlisted Personnel), in effect at the time, established the procedures to be followed in the separation of enlisted personnel from active military service and described the proper method of execution and disposition of the various forms, records, and reports required.  The regulation specifically stated the last unit, or similar element, to which assigned for duty rather than the element of which an individual was a part while moving to a separation point would be entered in item 28 (Most Significant Duty Assignment) of the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show four awards of the Purple Heart, the Bronze Star Medal with "V" Device, the Army Good Conduct Medal, and his most significant duty assignment as the 8th Engineer Combat Battalion.

2.  The photographs provided by the applicant are sufficiently convincing to show that he was given medical treatment at the 4th Field Hospital in Korea.  However, they do not substantiate that those injuries were the direct result of enemy action as required for award of the Purple Heart.  There is no available evidence of record showing that the applicant was wounded as a result of hostile action in Korea.  Therefore, the applicant's request for award of the Purple Heart should be denied. 
 
3.  The applicant's VA Rating Decisions do not provide any evidence showing that his medical conditions were the direct result of action against the enemy.  Therefore, the rating decisions are not sufficient as a basis for award of the Purple Heart.  

4.  	The available evidence is insufficient for awarding the applicant a Bronze Star Medal with "V" Device.  However, this in no way affects the applicant’s right to pursue his claim for the award by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code 1130.


5.  Notwithstanding the 6 December 2006 letter from the National Personnel Records Center which shows the applicant as authorized the Army Good Conduct Medal, there are no orders for the Good Conduct Medal in the available records.  Since the applicant’s service personnel records are not available, there is insufficient evidence on which to base award of the Good Conduct Medal in this case.

6.  The letters provided by the applicant clearly and convincingly show that he was assigned to the 8th Engineer Battalion in the Republic of Korea for a period of time and was subsequently reassigned to the 120th Engineer Combat Battalion.  It is acknowledged that the title of Item 28 is "Most Significant Duty Assignment."  However, only officers had their "most significant duty assignment listed in Item 28.  The regulatory guidance at the time required that the enlisted individual's last duty assignment prior to being processed for separation be shown as his most significant duty assignment in Item 28 of his DD Form 214.  This was done in the applicant's case. Therefore, there is no apparent error or injustice and the applicant's request to change this entry should be denied.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20080009439, dated 9 September 2008.



      __________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)                                         AR20090000556



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090000556



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1