IN THE CASE OF:	  

		BOARD DATE:	  19 November 2009

		DOCKET NUMBER:  AR20090011486 


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), for the period ending 2 November 1953, as follows:

	a.  Item 12 (Description - Race) to show his race as "Latin-Puerto-Rican" instead of "Caucasian";

	b.  Item 18 (Grade-Rate or Rank at Time of Entry into Active Service) as "Corporal (CPL)" instead of "Private (PV1)"; 

	c.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and campaign Ribbons Awarded or Authorized) to show the Purple Heart, Korean Service Medal with bronze service star, and the relisting of the National Defense Service Medal, Army of Occupation Medal with Germany Clasp, Army Good Conduct Medal, Combat Infantryman Badge, and the United Nations Service Medal; and

	d.  the issuance of an Honorable Discharge Certificate bearing the correct discharge date as 16 June 1957. 

2.  The applicant states that subsequent to the 1973 fire in St. Louis, and upon reconstruction of his DD Form 214, the reconstructed copy was incomplete.  He adds that:


	a.  his records were mishandled during his tenure by supervisors who negligently handled his personnel records and misled him due to a language barrier as well as racism which was prevalent at the time.  The mishandling of his personal records even continued after he submitted his Department of Veterans Affairs (DVA) Claim as evidenced by an article in the 9 March 2009 issue of Federal Times; 

	b.  he served his country proudly from 1949 to 1957 and fought during the Korean War.  He was honorably discharged on 16 June 1957 in the rank of CPL. He adds that he sustained injuries directly related to combat operations in Korea. Specifically, he was wounded by grenades thrown by enemy forces and that the explosion affected his hearing.  He was also hit with shrapnel on his right leg that was also fractured while attempting to seek cover from the attacks.  He was subsequently treated by emergency medical personnel on site; however, all attempts to retrieve documents related to this injury and to his medical treatment were unsuccessful due to racism and negligence; and

	c.  his reconstructed DD Form 214 contains several errors that should be corrected.  Additionally, the DVA service-connected disability compensation letter is a perfect example of the poor quality in handling his claim.

3.  The applicant provides a copy of his Honorable Discharge Certificate, dated 2 November 1953; a copy of a newspaper article, dated 9 March 2009; a copy of NA Form 13055 (Request for Information Needed to Reconstruct Medical Data), dated 14 January 2008; and a copy of his DVA rating decision, dated 2 October 2005, in support of his request.  

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 was issued two separation documents during his military service.  The first DD Form 214 captured his period of induction from 16 March 1951 to 2 November 1953.  The second DD Form 214 captured his period of enlistment from 3 November 1953 to 16 July 1956.

4.  The applicant’s first DD Form 214 shows that he was inducted in the Army of the United States and he entered active duty at Fort Buchanan, Puerto Rico (PR), in the rank/grade of PV1/E-1 on 16 March 1951.  This form also shows at the time of separation, he held an infantry military occupational specialty (MOS) and that his most significant assignment was with the Training Company, 7504th Auxiliary Unit, Camp Tortuguero, PR.  This form further shows the following entries:

	a.  He completed 2 years, 7 months, and 7 days of creditable military service, of which 1 year, 1 month, and 3 days was foreign service.

	b.  He was honorably discharged on 2 November 1953 for the purpose of immediate enlistment in the Regular Army (RA).

	c.  He was promoted to the permanent rank of private (PV2)/E-2 on 16 July 1951.  He was also appointed to the temporary rank of CPL on 23 April 1953 and held this temporary rank on the date of discharge.

	d.  Item 12 shows his race as "Caucasian."

	e.  Item 18 shows his rank at the time of induction as "Private."

	f.  Item 27 shows he was awarded the Combat Infantryman Badge, Korean Service Medal with one bronze service star, and the United Nations Service Medal.  Item 27 does not show award of the Purple Heart or the Army Good Conduct Medal.

	g.  Item 29 (Wounds Received As a Result of Action with Enemy Forces) shows the entry "None."


5.  The applicant’s second DD Form 214 shows he enlisted in the RA for a period of 3 years, in the rank/grade of PV2, on 3 November 1953.  This form also shows that at the time of separation, he held MOS 111.16 (Light Weapons Infantryman) and he was assigned to Company I, 6th Infantry Regiment.  This form further shows the following entries:

	a.  He completed 2 years, 7 months, and 17 days of creditable military service during this period of enlistment, of which 1 year, 7 months, and 24 days was his total foreign service.

	b.  He was honorably discharged on 16 July 1956, by reason of early release of enlisted personnel below mental standards for enlistment or reenlistment.

	c.  He was promoted to the permanent rank of PV2 on 20 March 1956 with a date of rank of 17 March 1956.  He was also appointed to the temporary rank/grade of private first class (PFC)/E-3 on 24 May 1956.

	d.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the National Defense Service Medal, Army of Occupation Medal with Germany Clasp, and the Army Good Conduct Medal.  Item 26 does not show award of the Purple Heart.

	e.  Item 27 (Wounds Received As a Result of Action with Enemy Forces) shows the entry "None."

6.  The applicant’s reconstructed records do not contain orders awarding him the Purple Heart.

7.  The applicant's medical records are not available for review with this case.

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

9.  The applicant provided the following documents in support of his request:

	a.  An extract from Federal Times, dated 9 March 2009, in which the author opines that the DVA mishandled several veterans claims.  

	b.  A copy of his DVA rating decision, dated 2 October 2008, in which he was awarded service-connected disability compensation for Post Traumatic Stress Disorder.

	c.  A copy of his Honorable Discharge Certificate, dated 2 November 1953.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.  War Department Technical Manual 12-236 (Preparation of Separation Forms) and Army Regulation 635-5 (Separation Documents) prescribed the policies and procedures for the preparation of separation forms.  These regulations state, in pertinent part, that the purpose of the separation document is to provide the veteran with a separation certificate and a military or enlisted record and report of separation.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty (emphasis added) to include attendance at basic and advanced training.  The regulation in effect at the time stated that:

	a.  Item 3a (Grade, Rate or Rank) shows the permanent or temporary grade at time of separation and item 3b shows the date of rank.  If the member’s grade at the time of separation is not permanent, the permanent grade, date of appointment, and date of rank, if different from date of appointment, was entered in item 32 (Remarks).

	b.  Item 12a shows the applicant’s race.  The Army classified members as Caucasian, Neg----, Mongolian, and/or Indian (American or Malayan).

	c.  Item 32 shows mandatory entries including an entry for the rank/grade and date of rank.  If the grade shown in item 3a is not permanent, this item will show a permanent grade, dated of appointment, and date of rank if different from date of appointment.  For example, "Item 3a-CPL (P), appointed on 1 August 1952" and/or "Item 3a-SP5 (Temporary) (E-5), appointed on 13 September 1951, date of rank 1 August 1952."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 contains various administrative errors and/or missing awards.  

2.  Contrary to the applicant’s belief that his DD Form 214 was reconstructed, the evidence of record shows that the applicant was issued two DD Forms 214 during his military service.  The first DD Form 214 was issued on the date he was discharged for the purpose of enlistment in the RA and captured his active 
service from the date of induction, 16 March 1951, to the date of discharge, 2 November 1953.  The second DD Form 214 was issued on the date he was discharged from the RA and captured his active service from the date of enlistment, 3 November 1953 to the date of discharge, 16 July 1956.

3.  With respect to transferring awards earned during a subsequent period of active service to a previously issued DD Form 214, the evidence of record shows that the applicant earned these awards during his enlistment period of service.  While the applicant may have earned the National Defense Service Medal during his induction period of service, he could not have earned the Good Conduct Medal during that period and there is insufficient evidence that he earned the Army of Occupation Medal with Germany Clasp during that same period as well. In any case, there is no provision in the regulation to transfer awards earned during a subsequent period of active service to a previously issued DD Form 214.

4.  With respect to the applicant’s race, while his pride in his heritage is admirable, his dissatisfaction with this entry does not invalidate it or make it wrong.  At the time his DD Form 214 was submitted, there was no provision to enter "Latin-Puerto Rico" as a race on the DD Form 214.  The Army has an interest in maintaining the accuracy of its records for historical purposes.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created.  In the absence of compelling information to the contrary, there is no basis for changing the applicant’s race in this case.

5.  With respect to award of the Purple Heart, there are no general orders that show the applicant was awarded the Purple Heart and there is no evidence in his reconstructed records that shows he was wounded or injured as a result of hostile action or treated for such wounds.  His name is not shown on the Korea Casualty Roster and his DD Form 214 does not list any combat wounds or injuries.  In the absence of documentation that conclusively shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case.

6.  With respect to the applicant’s rank at time of entry on active duty, the evidence of record shows that at the time of his induction and entry on active duty, the applicant held the rank/grade of PVT/E-1 which is correctly shown in item 18 of his first DD Form 214.  Absent evidence that shows he should have been inducted at a higher rank, there is insufficient evidence to grant his requested relief.

7.  With respect to his rank/grade at the time of his discharge for the purpose of enlistment in the RA, the evidence of record shows the applicant held the temporary rank of CPL and the permanent rank of PV2, both of which are correctly shown on his first DD Form 214.

8.  With respect to his rank/grade on his second DD Form 214, the evidence of record shows the applicant enlisted in the RA on 3 November 1953 as a PV2/E-2 and attained the temporary rank/grade of PFC/E-3, both of which are correctly shown on his second DD Form 214.  There is no indication that he was appointed to any temporary rank/grade during this period of enlistment.

9.  With respect to the applicant’s separation date, the evidence of record shows he was discharged from the RA on 16 July 1956 by reason of being ineligible for further enlistment or reenlistment.  There is no evidence that shows he performed any active duty service subsequent to his discharge on 16 July 1956.  Accordingly, he could not be issued an Honorable Discharge Certificate that shows he was honorably discharged on 16 June 1957.

10.  With respect to his DVA benefits, the ABCMR does not correct records for the purpose of establishing entitlements to other programs or benefits.  Additionally, DVA entitlements are not within the purview of this Board.

11.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ____x___  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      ___________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)                                         AR20090011486



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ABCMR Record of Proceedings (cont)                                         AR20090011486



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