IN THE CASE OF:	  

		BOARD DATE:	        27 MAY 2009

		DOCKET NUMBER:  AR20090003125 


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 Purple Heart and the Good Conduct Medal.

2.  The applicant states, in effect, that he is entitled to the award of the Purple Heart and the Good Conduct Medal.

3.  The applicant provides in support of his application, a copy of a Verification of Award of the Purple Heart Medal dated 12 February 1952; a copy of an endorsement addressed to the Commanding General, 25th Infantry Division, dated 21 May1952; copies of photographs of Army machinery; and a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States).

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 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 are sufficient documents that have been submitted by the applicant for the Board to conduct a fair and impartial review of this case.

3.  The applicant was inducted into the Army in Pittsburgh, Pennsylvania, on 12 December 1950.  He successfully completed his training as a tank crewman (Armor).

4.  On 12 February 1952, the Valley Forge Army Hospital, Chief, Military Personnel Branch notified The Adjutant General that records at the Army hospital failed to indicate that General Orders had been issued awarding the applicant the Purple Heart.  According to the Chief, Military Personnel Branch, the applicant was a sergeant and he was assigned to Company D, 89th Medium Tank Battalion, in North Korea, when he was wounded in action on 19 October 1951.

5.  The available records show that the notification dated 12 February 1952, from the Valley Forge Army Hospital, Chief, Military Personnel Branch, was forwarded from the office of The Adjutant General to the Commanding General, 25th Infantry Division for compliance and reply on 12 May 1952 with a suspense date of 21 May 1952.

6.  After completing 1 year, 9 months and 18 days of net service for pay purposes, the applicant was honorably released from active duty (REFRAD) on 29 September 1952, under the provisions of Army Regulation 615-360, at the expiration of his term of service.  He was transferred to the Enlisted Reserve Corps to complete his Reserve obligation.

7.  The DD Form 214 that the applicant was furnished at the time of his REFRAD shows that he was awarded the Korean Service Medal w/three Bronze Service Stars and the United Nations Service Medal; he had no lost time; and he was REFRAD in the rank of sergeant.  His DD Form 214 also shows that he had no wounds as a result of action with enemy forces while he was in the Army.




8.  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.  This regulation also provides that there is no statute of limitations on requests for award of the Purple Heart.

9.  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.

10.  Army Regulation 600-8-22 (Military Awards) 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 through a date to be determined.

11.  The Government of the Republic of Korea issued the Republic of Korea War Service Medal (ROK-KWSM) to pay tribute to eligible Korean War veterans for their historic endeavors to preserve the freedom of the Republic of Korea and the free world.  The Department of Defense approved acceptance and wear of the ROK-KWSM.  To qualify for award of the ROK-KWSM, the veteran must have served between 25 June 1950 and 27 July 1953 and been on permanent assignment for 30 consecutive days, or on temporary duty for 60 non-consecutive days, within the territorial limits of Korea, in the waters immediately adjacent thereto, or in aerial flight over Korea participating in actual combat operations or in support of combat operations. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to the awards of the Purple Heart and the Good Conduct Medal.


2.  His contentions have been noted and after careful consideration, have been determined to have merit.  The available evidence shows that it is very reasonable to presume that the applicant was wounded as a result of hostile action on 19 October 1951, when he was in North Korea.  The Chief, Military Personnel Branch at Valley Forge Hospital attempted to verify that the applicant had been awarded the Purple Heart on 12 February 1952 and based on the information reflected on his DD Form 214 he had not.  Therefore, it would be appropriate to award him the Purple Heart at this time.

3.  While the applicant’s record are not available for review, the available evidence shows that he was honorably REFRAD in the rank of sergeant after completing 1 year, 9 months and 18 days of net service.  There is no evidence available that indicates that he participated in any misconduct while he was in the Army based on the rank in which he was REFRAD.  Therefore, it is reasonable to believe that he is entitled to the Good Conduct Medal.

4.  During the review of this case it was determined that the applicant is also entitled to the National Defense Service Medal and the Republic of Korea War Service Medal based on the applicable regulation.

5.  In view of the foregoing, it would now be in the interest of justice to correct the applicant’s records as recommended below.

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.  awarding him the Purple Heart for wounds sustained as a result of hostile action by enemy forces on 19 October 1951, while he was assigned to Company D, 89th Medium Tank Battalion, in North Korea in North Korea, serving in the rank of sergeant;
   b.  awarding him the Army Good Conduct Medal for exemplary service from 12 December 1950 through 29 September 1952, while serving in the rank of sergeant;

   c.  awarding him the National Defense Service Medal; and 

   d.  amending his DD Form 214 to show that he was awarded the Purple Heart, the Good Conduct Medal, the National Defense Service Medal and the Republic of Korea War Service Medal.



      ________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)                                         AR20090003125



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ABCMR Record of Proceedings (cont)                                         AR20090003125



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