IN THE CASE OF:	

		BOARD DATE:	       13 AUGUST 2009

		DOCKET NUMBER:  AR20090003522 


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 correction of his DD Form 214 (Report of Separation from the Armed Forces of the United States) to show award of the Purple Heart, Bronze Star Medal with "V" Device, and Silver Star.

2.  The applicant states, in effect, he was a member of A Battery, 82nd AAA (AW) [Antiaircraft Artillery (Automatic Weapons)] Battalion on 12 August 1950, the date of a battle which earned him his Bronze Star Medal, which was finally in February 2007.  He states he was wounded during this battle and still has a metal object in his chest as evidence.  He provided medical records indicating his chest contained a foreign metal object approximately 1 by 3 millimeters in size.  He states that although he was wounded he refused medical treatment so others more severely hurt than he could be attended to. 

3.  The applicant provides a letter written on his behalf by the National President, 2nd Infantry Division, Korean War Veterans Alliance (retired Colonel) and a letter with a proposed Bronze Star Medal award citation from a retired captain who was his platoon commander in support of this application.

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 were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant's available military records show he enlisted in the Regular Army on 17 January 1949 for 3 years.  His records show he was retained for an additional 160 days beyond his normal expiration term of service on extension of enlistment per Public Law 51 82d Congress.  He was awarded the military occupational specialty number of 4602 (Antiaircraft Artillery Automatic Weapons Crewman), and was promoted to the rank of corporal/pay grade E-4.  

4.  The applicant's DD Form 214 shows his most significant duty assignment was to Battery A, 59th AAA (AW) Battalion.

5.  The applicant was discharged from active duty on 26 June 1952 after completing 3 years, 5 months, and 10 days of active duty service which included 10 months and 5 days of foreign and/or sea service.

6.  Item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's corrected DD Form 214 shows he was awarded the Korean Service Medal with one silver service star, National Defense Service Medal, United Nations Service Medal, Army Good Conduct Medal, and Republic of Korea Presidential Unit Citation.

7.  The available evidence does not contain any General Orders or any other evidence that shows he was awarded the Purple Heart, Bronze Star Medal, or Silver Star by proper authority.

8.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) of the applicant's DD Form 214 contains the entry "None."

9.  A statement from the National President, 2nd Infantry Division, Korean War Veterans Alliance on the applicant's behalf addressed to his Senator, dated 19 November 2005, indicates the National President was able to acquire a journal (from files at the National Archives) of the unit (A Battery, 82nd AAA (AW) Battalion) to which the applicant was assigned at the time, indicating the applicant was recommended for the Bronze Star Medal for action on 12 August 1950.  

10.  A journal entry for 12 August 1950 shows that two M-16s with crews were successful in attacking the enemy to extract portions of two companies which were not able to get through a North Korean ambush.  The applicant's name is not listed in the journal entry containing the names of four individuals wounded in action at the time.  The journal contains the entry, "All members of the two crews have been recommended for the Silver Star Award for valor in the face of enemy fire and for being directly responsible for the safe withdrawal and evacuation of our troops and wounded personnel. (this award was recommended by Brig. Gen. Bradley.)"  An additional journal entry for 1700 hours on 12 August 1950 contains the entry, "Two M-16's, Battery 'A' sent on a mission of relief of two companies of Task Force Bradley - - 'K' and 'I' - - that had been pinned down by enemy guerillas.  Evacuated infantry wounded.  Gun crew members and section chiefs recommended for Bronze Star awards."

11.  The applicant's former platoon commander in Korea (a retired captain) provided a statement attesting to the applicant being a member of his platoon in Battery A, 82nd AAA (AW) Battalion, 9th Regimental Combat Team, 2nd Infantry Division.  In the statement he indicates the applicant was a crew member on the lead M-16 and without regard for his personal safety exposed himself to enemy fire while insuring that all weapons were firing and continuously fed ammunition.  He states that following this action all members of both M-16 crews were awarded the Bronze Star Medal with V Device with the exception of the applicant.  He states that in retrospect he has no idea why the applicant was not included other than an administrative oversight which was not uncommon in those hectic days.  The applicant's former platoon commander provided a draft Bronze Star Medal award citation with his statement.

12.  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.


13.  Army Regulation 600-8-22 provides that the Bronze Star Medal is awarded to any person who distinguished himself by heroism or meritorious achievement or service, not involving participation in aerial flight in connection with military operations involving conflict with an opposing armed force.  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.

14.  Army Regulation 600-8-22 provides, in pertinent part, that the Silver Star (SS) 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 is required.

15.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  In pertinent part, this regulation states that for U.S. military decorations the only acceptable source documentation is the order, letter, or memorandum which awards the decoration.  Award certificates, citations, or separation certificates alone will not be the basis for entry of a decoration.

16.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states that awards and decorations for all periods of service in the priority sequence specified in Army Regulation 600-8-22 will be entered on the DD Form 214.  Each entry will be verified by the Soldier’s records.

17.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

18.  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.

DISCUSSION AND CONCLUSIONS:

1.  It is noted that the applicant stated he was wounded in the battle on 12 August 1950 but refused treatment so others more seriously injured could receive treatment.  He also provided medical documents indicating his chest contained a foreign metal object approximately 1 by 3 millimeters in size.  However, there is no evidence in the applicant's service personnel records and he has provided no corroborating evidence indicating this metal object in his chest was the result of a wound or injury sustained as a result of hostile action, or that he was treated for such a wound, or was recommended for or awarded the Purple Heart.  As a result, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  Therefore, there is an insufficient basis for awarding him the Purple Heart. 

2.  While the applicant indicates in his request that he received his Bronze Star Medal in February 2007, there is no evidence of record and the applicant did not provide any evidence of this award.  Army Regulation 600-8-104 states that the only acceptable source documentation is the order, letter, or memorandum which awards the decoration.  Army Regulation 635-5 states that each award entry on the Soldier's DD Form 214 will be verified by the Soldier’s records.  Therefore, there is insufficient evidence in which to award the applicant the Bronze Star Medal or to add this award to his DD Form 214.

3.  While the provided journal (war diary) from the 82nd AAA (AW) Battalion contains an entry that the M-16 crews were recommended for both the Bronze Star Medal and for the Silver Star, there is no substantive evidence available that the applicant was physically involved in the action on 12 August 1950.  In addition, just because a Soldier is recommended for an award does not necessarily mean the Soldier will receive the award.  The recommendation could be disapproved.  Therefore, there is insufficient evidence in which to award the applicant the Silver Star or to add this award to his DD Form 214.


4.  While the available evidence is insufficient for awarding the applicant the Bronze Star Medal and Silver Star, this in no way affects the applicant’s right to pursue his claim for the Bronze Star Medal and Silver Star by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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.



      ___________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)                                         AR20090003522



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ABCMR Record of Proceedings (cont)                                         AR20090003522



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