IN THE CASE OF:	  

		BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090013120 


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 that the records of her deceased husband, a former service member (FSM), be corrected to reflect his award of the Purple Heart with one oak leaf cluster (1OLC) and his rank of staff sergeant.

2.  The applicant states, in effect, that the records of her husband do not reflect his award of the Purple Heart with 1OLC and do not reflect his rank as a staff sergeant.

3.  The applicant provides copies of the FSM’s DD Form 214 (Report of Separation from the Armed Forces of the United States), his Purple Heart orders, newspaper articles, a letter to the FSM from the commanding general of the 2d Infantry Division dated 19 September 1951, and photographs of the FSM in uniform. 

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 members’ records at the National Personnel Records Center in 1973.  It is believed that the FSM’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.

3.  The FSM was inducted in Fayetteville, North Carolina on 18 October 1950.  He completed his training and was transferred to Korea for assignment to Company A, 23rd Infantry Regiment, 2d Infantry Division as an infantryman.

4.  On 4 August 1951, the applicant was wounded in action when he sustained a gunshot wound to the back in the vicinity of Kyo-Dong, Korea.  He was treated at the 8225th Mobile Army Surgical Hospital (MASH).

5.  He was promoted to the temporary rank of sergeant on 13 September 1951 and on 19 September 1951, he was again wounded in action when he received a shrapnel wound to the left side of the neck when he was struck by enemy artillery shell fragments at Satae-ri, North Korea.  He was initially treated at the 8209th MASH, then transferred to the 3d Station Hospital and was subsequently evacuated to Tripler Army Hospital in Hawaii and then to the Air Force Hospital at Travis Air Force Base, California and then to Percy Jones Army Hospital in Battle Creek, Michigan.

6.  He was on convalescent leave from 9 November 1951 to 18 January 1952 and from 8 February to 28 February 1952.  He was placed on ordinary leave on 28 February 1952 for a period of 30 days and on 26 June 1952, he was admitted to the United States Air Force Hospital at Lockbourne Air Force Base in Columbus, Ohio for treatment of malaria.  He was serving in the rank of sergeant at the time.

7.  On 17 July 1952, he underwent his separation physical examination and was still serving in the rank of sergeant. 

8.  On 18 July 1952, he was honorably released from active duty (REFRAD) at Fort Custer, Michigan and was transferred to the Enlisted Reserve Corps (now known as the United States Army Reserve) for a period of 5 years.  He had served 1 year, 9 months and 1 days of total active service of which 6 months and 18 days were served overseas.  His DD Form 214 issued at the time of his REFRAD shows that he was awarded the Combat Infantryman Badge, the Korean Service Medal (KSM) with two bronze service stars and the Distinguished Unit Badge, which is now known as the Presidential Unit Citation (PUC).  His DD Form 214 also reflects that he was wounded in Korea on 4 August and 19 September 1951.  The FSM’s name is also listed on the Korean Casualty File as being wounded on 4 August and 19 September 1951.  He also had no lost time.

9.  The photograph provided by the applicant shows that the FSM was wearing the Purple Heart with 1OLC when he was photographed in his uniform wearing sergeant rank and a Fifth Army unit patch.  He was also wearing awards of the United Nations Service Medal, the KSM with two bronze service stars and the PUC.

10.  A review of the available records fails to show orders for the second award of the Purple Heart or a promotion to the rank of staff sergeant.

11.  Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214.  It provides, in pertinent part, that the DD Form 214 will be prepared to reflect information as it exist on the date of REFRAD or discharge from active duty.  Events that occur subsequent to the period covered by the DD Form 214 will not be retroactively entered on that form.

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 (Military Awards) provides for award of the United Nations Service Medal.  In pertinent part, the regulation states that the period of eligibility for the United Nations Service Medal was between 27 June 1950 and 27 July 1954.  The regulation provides that this service medal was awarded to members of the Armed Forces of the United States dispatched to Korea or adjacent areas on behalf of the United Nations.  Award of the Korean Service Medal automatically establishes eligibility for award of the United Nations Service Medal.

14.  Army Regulation 672-5-1 (Military Awards) provides that the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 through 27 July 1954, 1 January 1961 through 14 August 1974, inclusive.  This regulation also provides that to signify a second award of the National Defense Service Medal a bronze service star will be worn on the service ribbon.

15.  Army Regulation 600-65 (later superseded by Army Regulation 672-5-1), in effect at the time, provided policy and criteria concerning service medals.  It stated that the Army Good Conduct Medal (AGCM) was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940, for first award only, 1 year served entirely during the period 7 December 1941 to 2 March 1946 and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  At the time, a Soldier's conduct and efficiency ratings must have been rated as "excellent" for the entire period of qualifying service and there must have been no convictions by court-martial.

16.  The Government of the Republic of Korea issued the Republic of Korea War Service Medal (ROK-KWSM) to pay tribute to eligible Korean War veterans for their historic endeavors to preserve the freedom of the Republic of Korea and the free world.  The Department of Defense approved acceptance and wear of the ROK-KWSM.  To qualify for award of the ROK-KWSM, the veteran must have served between 25 June 1950 and 27 July 1953 and been on permanent assignment for 30 consecutive days, or on temporary duty for 60 non-consecutive days, within the territorial limits of Korea, in the waters immediately adjacent thereto, or in aerial flight over Korea participating in actual combat operations or in support of combat operations.

17.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register), dated 6 July 1961, shows that the applicant was assigned to a unit which was awarded the Republic of Korea Presidential Unit Citation (ROK-PUC) by Department of the Army General Order Number 10-54.

18.  The enlisted grade structure of the Army shows that the rank of staff sergeant was not created and did not go into effect until 1 June 1958.  Prior to that time the rank insignia of a sergeant was that of what was to become the rank insignia of a staff sergeant.   Special Regulation 600-60-1 (Personnel Insignia) dated 26 October 1951 contains the authorized grade insignia for enlisted personnel.  It reflects that there were six enlisted grades at the time that were authorized grade insignia.  The grade insignia for a sergeant was comprised of three stripes on top and one stripe on the bottom. 

DISCUSSION AND CONCLUSIONS:

1.  Although orders are not present for both awards of the Purple Heart, the available evidence does show that the FSM was wounded on two separate occasions and that treatment was made a matter of record in both cases.  Therefore, it is reasonable to presume that the FSM was in fact awarded the PH 1OLC and that it should be added to his records at this time. 
2.  The FSM is also entitled to the awards of the UNSM, the NDSM, the KWSM and the ROK-PUC.  Accordingly, those awards should be awarded and added at this time as well.

3.  Although the FSM’s conduct and efficiency ratings are not present in the available records, it is reasonable to presume, given his rapid advancement in rank during such a short period and the lack of lost time, that he had “excellent” conduct and efficiency ratings and therefore should have been awarded the AGCM for his service from 18 October 1950 to 18 July 1952.  Accordingly, it would be in the interest of justice to do so at this time. 

4.  In regards to the FSM’s rank at the time of his REFRAD, the available evidence of record does not contain any evidence to show that he was promoted to the rank of staff sergeant while he was on active duty.  Documents contained in the available records show that he was still serving in the rank of sergeant when he was REFRAD on 18 July 1952 and was transferred to the Enlisted Reserve Corps (ERC) for a period of 5 years.  Additionally, the rank of Staff sergeant did not exist at the time and the rank insignia contained in the pictures provided by the applicant was that of a sergeant at the time.  Therefore, absent evidence to the contrary, there appears to be no basis to change his rank on his DD Form 214.

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 the FSM the AGCM for the period of 18 October 1950 to 18 July 1952; and

   b.  adding the AGCM, the UNSM, the NDSM, the KWSM, the ROK-PUC, and the Purple Heart 1OLC 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 changing the FSM’s rank to staff sergeant on his DD Form 214.

3.  The Board wants the applicant and all others to know that the sacrifices made by her late husband in service to the United States during the Korean War are deeply appreciated.  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)                                         AR20090013120





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ABCMR Record of Proceedings (cont)                                         AR20090013120



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