DOCKET NUMBER:  AR20090003835 


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 his record be corrected to show award of the Soldier's Medal, the Bronze Star Medal, and the Purple Heart.

2.  The applicant states, in effect, that he was not awarded the Purple Heart for wounds he received to his head and shoulders on 6 May 1953.  

3.  The applicant provides a copy his DD Form 214 (Report of Separation from the Armed Forces of the United States); a portion of General Orders Number 165, dated 10 May 1954; a Recommendation for Award-Heroism; a Proposed Citation for the Soldier's Medal, and a letter from L---s V---a 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 ABCMR 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 remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case. 

3.  The available evidence show the applicant enlisted in the Regular Army on   28 September 1951.

4.  Headquarters, 2nd Infantry Division General Orders Number 165, dated 
10 May 1954 awarded the applicant the Bronze Star Medal for meritorious service from 11 April 1953 to 10 May 1954. 

5.  On 20 January 1954, the applicant was recommended for award of the Soldier's Medal.

6.  On 2 July 1954, the applicant was honorably released from active duty after completing a total of 2 years, 9 months, and 5 days of active military service.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he received the Republic of Korea Presidential Unit Citation, the Korean Service Medal with two bronze service stars, the United Nations Service Medal, the National Defense Service Medal, the Good Conduct Medal, and the Combat Infantryman Badge.  The Soldier's Medal, Bronze Star Medal, and Purple Heart are not shown on the DD Form 214.

7.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Soldier's Medal is awarded for distinguished heroism not involving actual conflict with the enemy.  The same degree of heroism is required as for award of the Distinguished Flying Cross.  The performance must have involved personal hazard or danger and the voluntary risk of life under conditions not involving conflict with an armed enemy.  Awards of the Soldier's Medal will not be made solely on the basis of having saved a life.  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 or reconsideration.

8.  The applicant’s name is not listed on the Korean War Casualty File.  

9.  The applicant submitted a letter from L---s V---a, dated 20 February 2009, in which he states that to the best of his recollection the applicant was one of his machine gunners, and on or about 6 May 1953 they came under severe enemy fire.  He also states that at daylight the applicant told and showed him that he had been wounded in the shoulder and head.  He was remiss about not following up with the medics. 

10.  Army Regulation 600-8-22 also 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.

11.  Title 10 of the U. S. Code, section 1130 (10 USC 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.  The applicant's contentions that he is entitled to correction of his record to show award of the Solder's Medal, Bronze Star Medal, and Purple Heart have been carefully considered.

2.  General Orders Number 165, dated 10 May 1954, awarded the applicant the Bronze Star Medal.  Therefore, his record should be corrected to show this award.  

3.  There is no evidence available which shows the applicant was wounded or injured as a result of hostile action or treated for such wounds.  Although the applicant submitted a letter from a former fellow Soldier who states that to his best recollection he saw the head and shoulder wounds, it does not substitute for the fact that the wounds had to be made a matter of record by medical personnel.  Additionally, the applicant’s name is not listed on the Korean Casualty Roster.  In the absence of such evidence, the applicant has not established a basis sufficient to award the Purple Heart in this case.

4.  Notwithstanding the recommendation that the applicant provided for award of the Soldier’s Medal, there is no evidence available to show this award was ever approved.  Therefore, the available evidence is insufficient for awarding this medal.    

5.  While the available evidence is insufficient for awarding the applicant a Soldier's Medal, this in no way affects the applicant’s right to pursue his claim for the Soldier's Medal by submitting a request through his Member of Congress under the provisions of 10 USC 1130.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  _______  _________  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 be corrected by adding the Bronze Star Medal to his DD Form 214.

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 Soldier's Medal and the Purple Heart.



      		_________________________
      	         		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)                                         AR20090003835



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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