IN THE CASE OF:	

		BOARD DATE:	  4 February 2010

		DOCKET NUMBER:  AR20090014796 


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 reconsideration of his request for award of the Purple Heart.  He also requests award of the Bronze Star Medal.

2.  The applicant states, in effect, in late November 1950 all personnel in his unit were captured by North Korean and Chinese Army soldiers, except for him and one other Soldier.  He also states he was wounded by a Chinese hand grenade on 30 November 1950 and also recommended for the Bronze Star Medal.  He adds that the other Soldier who was with him at the time has since died.

3.  The applicant provides, in support of his application, copies of his three
DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) and two "buddy" statements.

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 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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC96-09759, on 6 November 1996.

3.  Army Regulation 15-185 (Army Board for Correction of Military Records) sets forth procedures for processing requests for correction of military records.  Paragraph 2-15 governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  Such requests must provide new evidence or argument that was not considered at the time of the ABCMR's prior consideration.

4.  Since the applicant's request for award of the Bronze Star Medal is new and must be considered by the Board, his evidence relative to the Purple Heart will be discussed as an exception to policy.

5.  The applicant enlisted and entered active duty in the Regular Army (RA) on
3 March 1950.  Upon completion of training, he was awarded military occupational specialty (MOS) 111 (Rifleman).

6.  The applicant's DA Form 24 (Service Record) shows in:

   a.  Section 4 (Chronological Record of Military Service), in pertinent part, that he was assigned to Company B, 2nd Engineer Combat Battalion, from 14 July 1950 to 20 June 1951;
   
   b.  Section 8 (Wounds Received Through Enemy Action) is blank; and
   
   c.  Section 9 (Medals, Decorations, and Citations) shows the Republic of Korea Presidential Unit Citation, United Nations Service Medal, Combat Infantryman Badge, Korean Service Medal with 8 campaign stars, National Defense Service Medal, Army of Occupation Medal with Germany Clasp, Good Conduct Medal, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

7.  The applicant's DD Form 214 shows he entered active duty this period on
3 March 1950 and he was honorably discharged on 7 March 1956.

   a.  Item 27 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows the Republic of Korea Presidential Unit Citation, United Nations Service Medal, Korean Service Medal, National Defense Service Medal, Army of Occupation Medal with Germany Clasp, Good Conduct Medal, Combat Infantryman Badge, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

   b.  Item 29 (Wounds Received As A Result Of Action With Enemy Forces) shows the entry "NA."

8.  A DD Form 214 shows the applicant reenlisted in the RA on 8 March 1956 and he was honorably discharged on 5 January 1959.

	a.  Item 26 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows the Expert Marksmanship Qualification Badge with Rifle Bar and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

   b.  Item 27 (Wounds Received As A Result Of Action With Enemy Forces) shows the entry "None."

9.  A DD Form 214 shows the applicant again enlisted in the RA on
30 March 1959 and he was honorably discharged on 1 April 1964.  At the time he had completed 5 years and 2 days of net active service; 8 years, 10 months, and 3 days of other service; and 13 years, 10 months, and 5 days of total service.

	a.  Item 26 shows the Expert Marksmanship Qualification Badge with Rifle Bar.

   b.  Item 27 shows the entry "None."

10.  There are no orders or other evidence in the applicant's military service records that shows he was awarded the Purple Heart.

11.  A review of The Adjutant General Office, Casualty Division's Korean Casualty Roster, did not reveal the applicant's name on the roster.

12.  There are no orders or other evidence in the applicant's military service records that shows he was awarded the Bronze Star Medal.

13.  Headquarters, U.S. Army Reserve Personnel Center, St. Louis, Missouri, memorandum, dated 18 February 1992, shows the Chief, Special Actions Branch, Personnel Services Division, responded to the applicant's request for awards, including the Purple Heart and Bronze Star Medal.  This document shows that a search of the morning reports for Company B, 2nd Engineering 
Battalion Combat Team, 2nd Infantry Division, from 1 November 1950 through
31 January 1951, failed to show the applicant was injured as a result of enemy action.  In addition, a review of the applicant's records failed to identify a general order awarding him the Bronze Star Medal.

14.  ABCMR Docket Number AC96-09759, dated 6 November 1996, shows the applicant submitted a statement from [then Corporal] Juan A. C______, undated.  The applicant's request for award of the Purple Heart was denied by the Board.

15.  In support of this application, the applicant now provides copies of the following documents:

   a.  The same statement from Mr. Juan A. C______ that was previously submitted.

   b.   A letter written by Mr. James F. M_____, dated 2 November 1994, who states he served with the applicant in Korea as a platoon leader in his company and as his company commander for a period of seven days.  Mr. M_____ describes actions the unit was involved in during November 1950.  He states, in pertinent part, "[a]lso, I was with [the applicant] on the terrifying walkout through the Chinese lines 30 Nov - 1 Dec 50.  I recall the frigid cold, the exhaustion from several days without sleep, the random shots at us by the Chinese and other terrible conditions."  Mr. M_____ does not state that he witnessed the applicant being wounded or that the applicant was wounded during this period.

16.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.

   a.  The Purple Heart is awarded to any member who has been wounded or killed in action.  A wound is an injury to any part of the body from an outside force or agent sustained as a result of hostile action.  In order to support awarding a member the Purple Heart, it is necessary to establish that the wound for which the award is being made required treatment by medical personnel.  This treatment must be supported by records of medical treatment for the wound or injury received in action, and must have been made a matter of official record at the time.

   b.  The Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.


   c.  Paragraph 1-14 (Time limitation) of the Military Awards regulation provides that, except for the provisions of Title 10, U.S. Code, section 1130, each recommendation for an award or decoration must be entered administratively into military channels within two years of the act, achievement, or service to be honored.  Submission into military channels is defined as "signed by the initiating official and endorsed by a higher official in the chain of command."  However, pursuant to Title 10, U.S. Code, section 1130, a Member of Congress may request consideration of a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy.  Based upon such review, the Secretary of the Army will make a determination as to the merits of approving the award or presentation of the decoration and other determinations necessary to comply with congressional reporting under Title 10, U.S. Code, section 1130.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, his request for award of the Purple Heart should be reconsideration based on the new "buddy" statement he provides.  He also contends he was awarded the Bronze Star Medal.

2.  The applicant's request for reconsideration was thoroughly reviewed.  The request for reconsideration was not received within one year of the ABCMR's original decision.  Moreover, the "buddy" statement the applicant now provides offers no new substantive evidence in support of his claim to the Purple Heart.  Therefore, the original decision of the Board is affirmed and the applicant is not entitled to the Purple Heart.

3.  There are no orders or other evidence, and the applicant did not provide any evidence, that shows he was awarded the Bronze Star Medal.  Therefore, he is not entitled to the Bronze Star Medal.

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


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 to amend the decision of the ABCMR set forth in Docket Number AC96-09759, dated 6 November 1996.

2.  Additionally, with respect to the applicant's request for award of the Bronze Star Medal, 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.

3.  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)                                         AR20090014796



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ABCMR Record of Proceedings (cont)                                         AR20090014796



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