IN THE CASE OF:	  

		BOARD DATE:	  2 June 2009

		DOCKET NUMBER:  AR20090003232 


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, the daughter of a deceased former service member (FSM), requests correction of her father's military records to show award of the Purple Heart, Prisoner of War (POW) Medal, and any other awards that he should have received.

2.  The applicant states that she does not know why these awards were not entered on the FSM's DD Form 214 (Report of Separation from the Armed Forces of the United States).

3.  The applicant provides, in support of her application, copies of the FSM's DD Forms 214 ending on 1 November 1953 and 12 November 1956, the FSM's Certificate of Death, the applicant's Certificate of Live Birth, a United States National Archives and Records Administration record of repatriated Korean War Prisoners of War report, and two newspaper articles.

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 for review.  A fire destroyed approximately 18 million service member's records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, there are sufficient documents available to conduct a fair and impartial review of this specific request.

3.  The FSM's DD Form 214 ending 1 November 1953 shows:

	a.  that the FSM enlisted on 5 October 1949 for 3 years;

	b.  that the FSM served with Company L, 38th Infantry Regiment, in the Republic of Korea;

	c.  that the FSM was an infantryman;

	d.  that the FSM served in the Republic of Korea for a total of 3 years, 1 month, and 3 days;

	e.  that the FSM was a POW;

	f.  that the FSM was retained in service [past his expiration term of service] for 1 year and 28 days as a POW;

	g.  that the FSM's awards included the Republic of Korea Presidential Unit Citation, Korean Service Medal with two bronze service stars, National Defense Service Medal, United Nations Service Medal, and the Bronze Star Medal;

	h.  that the FSM did not receive any wounds as a result of action with enemy forces; and

	i.  that the FSM had completed 4 years and 28 days of active duty service and was honorably discharged on 1 November 1953.

4.  On 13 November 1953, the FSM enlisted in the Regular Army.  On 29 December 1954, he was discharged for the purpose of immediate reenlistment for a period of 6 years.

5.  On 12 November 1956, the FSM was retired due to physical disability.  His retired rank was sergeant first class.  He had completed a total of 7 years and 25 days of creditable active duty service.

6.  The United States National Archives and Records Administration record shows that the FSM was a POW for a period of 2 years, 9 months, and 10 days from 27 November 1950 to 6 September 1953.

7.  The applicant's name does not appear on the Korean War Casualty List as a combat casualty.

8.  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, and the medical treatment must have been made a matter of official record.

9.  Army Regulation 600-8-22 prescribes Army policy and procedures concerning awards.  Paragraph 8-6 provides for award of the Combat Infantryman Badge.  That paragraph states that there are basically three requirements for award of the Combat Infantryman Badge.  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 have an infantry specialty, satisfactorily performed duty while assigned or attached as a member of an infantry 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 primary duty, in a unit actively engaged in ground combat with the enemy.

10.  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 contends that the FSM's DD Form 214 does not show all of his authorized awards, to include the Purple Heart, POW Medal, and any other awards that he may be authorized.

2.  There are no general orders that show the FSM was awarded the Purple Heart.  The FSM's name is not listed on the Korean War Casualty List.  The applicant has not provided any evidence showing that the FSM received any wounds in action.  Therefore, the applicant's request for award of the Purple Heart should be denied.

3.  The available evidence clearly shows that the FSM was a POW from 27 November 1950 to 6 September 1953.  Therefore, his records should be corrected to show award of the POW Medal.

4.  The available evidence shows that the FSM served with an infantry unit of brigade, regimental, or smaller size.  Presumably, his capture as an infantry Soldier during the Communist Chinese Forces Intervention Campaign (beginning when the Communist Chinese crossed the border on 3 November 1950) is substantiating evidence of his satisfactory performance of duty in combat while assigned or attached as a member of an infantry unit of brigade, regimental, or smaller size during any period such unit was engaged in active ground combat.  Therefore, he should be awarded the Combat Infantryman Badge effective 27 November 1950.

5.  The applicant served during a qualifying period for award of the Republic of Korea War Service Medal.  Therefore, his records should be corrected to show this award.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X___  ___X____  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 him the Combat Infantryman Badge effective 27 November 1950;

	b.  showing that, in addition to the awards shown on his DD Form 214 ending on 1 November 1953, his authorized awards include the Prisoner of War Medal, Combat Infantryman Badge, and the Republic of Korea War Service Medal.

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 award of the Purple Heart.



      ____________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)                                         AR20090003232



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ABCMR Record of Proceedings (cont)                                         AR20090003232



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