IN THE CASE OF:	  

		BOARD DATE:	 	  24 November 2009  

		DOCKET NUMBER:  AR20090011019 


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, award of the Silver Star (SS), Bronze Star Medal (BSM), and the Purple Heart (PH).

2.  The applicant states, in effect, he was told he was put in for the SS, BSM, and the PH, but none were ever received.  He claims that during his service in Korea, he was hospitalized 3 times -- for frozen feet, tonsillitis, and for passing blood after an artillery barrage.

3.  The applicant provides no documentary evidence in support of his 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 record is not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  This case is being considered using reconstructed records which primarily consist of the applicant's DD Form 214 (Report of Separation from the Armed Forces of the United States), Office of The Surgeon General (OTSG) Hospital Admission Records, Morning Reports, Sick Reports, and various miscellaneous documents remaining in the applicant's NPRC file.

3.  The applicant's DD Form 214 shows he enlisted in the Regular Army (RA) and he entered active duty on 9 December 1948.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows that he earned the Korean Service Medal (KSM) with 
3 bronze service stars, 2 Overseas Service Bars, Army of Occupation Medal (AOM) with Japan Clasp, and the Combat Infantryman Badge (CIB).  The SS, BSM, and PH are not included in the list of awards contained in item 27.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) contains the entry "None."  It further confirms he completed 3 years and 2 days of total active service and was he was honorably discharged on 10 December 1951 in the rank of corporal.

4.  The applicant's NPRC file contains an OTSG hospital record that shows he was admitted to a military medical treatment facility in Korea on 20 December 1950, and he was treated for a non-battle related illness, "Hermaturia" (presence of red blood cells in the urine (erythrocytes)).

5.  The applicant's NPRC file also contains a WD AGO Form 8-24 (hospital admission report) that indicates he was admitted to a military medical facility at Fort Riley, KS, on 20 January 1949, treated for tonsillitis, and released on
21 January 1949.  It also contains daily sick reports for Headquarters and Headquarters Company, 2nd Battalion, 15th Infantry Regiment, the applicant's unit in Korea, which show he was reported sick on 17 September 1950,
1 and 23 October 1950, and 17 and 20 December 1950.  These sick reports     do not list the specific medical condition.  In addition, it contains WD AGO Forms 1 (Morning Report) that show the applicant's status was reported as from present for duty to sick hospital on 20 December 1950, and that he was reported arrived from replacement detachment on 1 March 1951.

6.  The NPRC file is void of any orders or other documents that indicate the applicant was ever recommended for or awarded the SS or BSM by proper authority while serving on active duty.  It is also void of any orders, documents, or 
medical treatment records that show he was ever wounded in action, treated for a combat-related wound, or recommended for and awarded the PH by proper authority while serving in Korea.

7.  Army Regulation 600-8-22 (Military Awards) prescribes Army's awards policy. Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH.  It states, in pertinent part, that in order to award a PH there must be evidence that the wound for which the award is being made was received as a result of enemy action; that the wound required treatment by medical personnel; and a record of this medical treatment must be supported by medical treatment records that were made a matter of official record.

8.  Paragraph 3-1 of the awards regulation states, in pertinent part, that the decision to award an individual a decoration and as to which award is appropriate are both subjective decisions made by the commander having award approval authority.  Paragraph 3-10 contains guidance on award of the SS and states, in pertinent part, that it is awarded for gallantry in action of a lesser degree than required for the Distinguished Service Cross.  Paragraph 3-14 contains guidance on award of the BSM and states, in pertinent part, that it is awarded for heroic acts, or meritorious achievement or service, of a lesser degree than required for the SS.

9.  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.

10.  The award request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to the Secretary of the Army at the following agency:  U.S. Army Human Resources Command, Personnel Service Support Division, 200 Stovall Street, Room 3S67, Alexandria, VA  22332-0405.  The applicant's unit must be clearly identified, along with the period of assignment and the award being recommended.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Corroborating evidence is best provided by commanders, leaders and fellow 
Soldiers who had personal knowledge of the circumstances and events relative to the request.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been awarded the SS, BSM, and PH was carefully considered.  However, there is insufficient evidence to support his claim.

2.  By regulation, in order to support award of the PH, there must be evidence that the wound for which the award is being made was received as a result of enemy action, that it required treatment by medical personnel, and a record of this treatment must have been made a matter of official record.  The available evidence fails to show the applicant was ever wounded as a result of enemy action or treated for a wound received as a result of enemy action while serving on active duty.  His DD Form 214, item 29, contains the entry "None," which indicates he was not wounded as a result of action with enemy forces.  Further, the OTSG admission report in the NPRC file confirms he was admitted to a military medical facility and treated for a non-battle related illness in December 1950 and the sick reports on file fail to show wounds received as a result of enemy action was ever the basis for his illnesses.  As a result, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Therefore, it would not be appropriate or serve the interest of all those who served in Korea and who faced similar circumstances to award the applicant the PH.

3.  The applicant's contention that he should be awarded the SS and BSM was also carefully considered.  However, there is no evidence indicating that he was ever recommended for or awarded the SS or BSM by proper authority while serving on active duty, and he has failed to provide sufficient compelling independent evidence of an act of gallantry or of heroic acts, meritorious achievement, or meritorious service that would have supported award of either the SS or BSM.  As a result, absent any evidence that he was ever recommenced for or awarded either of these awards by proper authority while serving on active duty, there is an insufficient evidentiary basis to support granting this portion of the requested relief.  

4.  While the available evidence is insufficient for awarding the applicant the SS or BSM, this in no way affects the applicant’s right to pursue his claim for the SS and/or the BSM by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.
5.  The applicant and all others concerned should know that this action related to award of the PH, SS, and the BSM in no way diminishes the sacrifices made by him in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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.



      _________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)                                         AR20090011019



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ABCMR Record of Proceedings (cont)                                         AR20090011019



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