IN THE CASE OF:	  

		BOARD DATE:	  27 July 2010

		DOCKET NUMBER:  AR20100000539 


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 the last DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) of his deceased father, a former service member (FSM), to show the Purple Heart, Bronze Star Medal, Prisoner of War Medal, and any Vietnam and Korea awards not already listed.  

2.  The applicant states he wants these corrections in order to correct his father's headstone with the proper information. 

3.  The applicant provides copies of the following:

* his deceased father's death certificate
* his own birth certificate
* an image of his father's headstone
* four DD Forms 214
* WD AGO Form 55 

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 show that he enlisted in the Regular Army for 3 years on 5 January 1949.  He enlisted again on 20 January 1954 and served continuously by reenlistments.  He completed initial entry training, was awarded the military occupational specialty of light weapons infantryman, and was promoted to pay grade E-6.

3.  The FSM's:

	a.  DA Form 20 (Enlisted Qualification Record) for his initial term of service shows his service in Korea began on 23 January 1951.  He was assigned to E Company, 21st Regiment during the period 23 January to 8 February 1951.

	b.  A WD AGO Form 0365 (Battle Casualty Report) lists the FSM as missing in action beginning on 9 February 1951.

	c.  A subsequent WD AGO Form 0365 dated 18 December 1951 shows he was included on a list of prisoners supposed to be held by the enemy.

	d.  His DA Form 20 shows he was released as a prisoner of war on 21 August 1953 and returned to the Continental U.S.

4.  A memorandum, subject: Eligibility of Awards, dated 16 April 1957, shows the FSM was entitled to the following:

* Army of Occupation Medal with Japan Clasp
* National Defense Service Medal
* Korean Service Medal with two bronze service stars for participation in the Chinese Communist Forces (CCF) Intervention and First United Nations (UN) Counteroffensive campaigns
* United Nations Service Medal 

5.  The FSM's DA Form 20 for subsequent service shows he was assigned to Troop A, 1st Squadron, 4th Cavalry, 1st Infantry Division in the Republic of Vietnam (RVN) performing duties as an assistant squad leader and section leader during the period 23 March 1967 to 6 August 1967.  It further shows he served as a tank commander while assigned to Troop C, 1st Squadron, 4th Cavalry, 1st Infantry Division during the period 7 August 1967 to 7 March 1968.
6.  This DA Form 20 also shows he received the following awards, decorations, and badges:

* Good Conduct Medal (2d award)
* Vietnam Service Medal
* National Defense Service Medal (2d award)
* RVN Campaign Medal
* Expert Marksmanship Qualification Badge with Rifle (M-14) Bar
* Expert Marksmanship Qualification Badge with Pistol (.45 caliber) Bar

7.  A DD Form 261 (Report of Investigation), dated 31 July 1967, shows that on 25 July 1967, while the FSM was participating in a search and destroy operation, he attempted to load his pistol, at which time the round chambered and the pistol discharged with the bullet injuring the big toe on his right foot.  It further stated that there was no reason to indicate he intentionally injured himself. 

8.  The FSM was honorably retired on 31 May 1969 and transferred to the U.S. Army Reserve Control Group (Retired) due to years of service.

9.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the FSM's final DD Form 214 shows award of the Good Conduct Medal (2d award), Vietnam Service Medal, RVN Campaign Medal, and National Defense Service Medal with oak leaf cluster (OLC).

10.  Item 40 (Wounds) of the FSM's DA Form 20 contains the entry, "GSW Right Foot 25Jul67."

11.   A review of the Korean Casualty File and the Vietnam Casualty Roster failed to show the FSM was wounded.

12.  There is no evidence in the available records and the applicant did not provide any evidence which shows the FSM was ever wounded or treated for wounds sustained as the result of hostile action.

13.  The FSM's records do not contain any evidence that indicates he was ever recommended for or awarded the Purple Heart or Bronze Star Medal by proper authority.
 
14.  A review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders for award of the Purple Heart or Bronze Star Medal.

15.  U. S. Army Vietnam Regulation 672-1 (Decorations and Awards) governed the military awards program in Vietnam during the Vietnam War.  This regulation stated the Bronze Star Medal may have been awarded for heroism or for meritorious achievement or service which did not involve aerial flight but which was performed in connection with military operations against an armed enemy including combat, support, and supply operations.  The approval authority for award of the Bronze Star Medal was generally delegated no lower than brigadier generals in command of separate brigades.  

16.  Army Regulation 600-8-22 (Military Awards) provides 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.

17.  Army Regulation 600-8-22 states the Prisoner of War Medal was authorized on 8 November 1985 and is awarded to individuals who in past armed conflicts were taken prisoner or held captive after 5 April 1917.  The Prisoner of War Medal is to be issued only to those U.S. military personnel and other personnel granted creditable U.S. military service who were taken prisoner and held captive (1) while engaged in an action against an enemy of the United States; (2) while engaged in military operations involving conflict with an opposing foreign force; (3) while serving with friendly forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party; or (4) by foreign armed forces that are hostile to the United States, under circumstances which the Secretary concerned finds to have been comparable to those under which persons have generally been held captive by enemy armed forces during periods of armed conflict.

18.  Army Regulation 600-8-22 states the Korean Service Medal is awarded for qualifying service in the theater of operations between 27 June 1950 and 27 July 1954.  Appendix B of Army Regulation 600-8-22 shows the campaigns for Korea.  During the FSM's tour in Korea he participated in the CCF Intervention and First United Nations (UN) Counteroffensive campaigns.  This same regulation states that a bronze service star will be awarded for wear on the Korean Service Medal for participation in each campaign.

19.  Appendix B of Army Regulation 600-8-22 shows the campaigns for Vietnam.  During the FSM's tour in Vietnam he participated in the Vietnamese Counteroffensive Phase II (1 July 1966 - 31 May 1967), Vietnamese Counteroffensive Phase III (1 June 1967 - 29 January 1968), and Tet Counteroffensive (30 January - 1 April 1968) campaigns.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

20.  Army Regulation 600-8-22 states the United Nations Service Medal is awarded to members of the Armed Forces of the United States dispatched to Korea or adjacent areas on behalf of the United Nations during the period between 27 June 1950 and 27 July 1954.  Personnel awarded the Korean Service Medal automatically establish eligibility for the United Nations Service Medal.

21.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists campaign participation credit and unit citation emblems awarded during the Vietnam Conflict.  This pamphlet shows that while the FSM was assigned to his units those units received the:

* Valorous Unit Award based on Department of the Army General Orders (DAGO) Number 31, dated 1969
* RVN Gallantry Cross with Palm Unit Citation based on DAGO 21, dated 1969
* RVN Civil Actions Honor Medal First Class Unit Citation based on DAGO 53, dated 1970

22.  Army Regulation 635-5 (Personnel Separations – Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  This regulation:

	a.  states that for item 24 of the DD Form 214 enter from section 9, DA Form 20, all decorations, service medals, campaign credits, and badges awarded or authorized.

	b.  directs that, in the case of prisoners of war, enter "PRISONER OF WAR, (unit of assignment/country) (date of capture and release date)" in the "Remarks" section of the discharge document.

23.  Title 10, U.S. Code, section 1130, provides the legal authority for consideration of proposals for decorations not previously submitted in a 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 the 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.

24.  The 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.  Since there is no evidence that the FSM was recommended for or awarded the Bronze Star Medal, there is insufficient evidence to award him the Bronze Star Medal.  However, this in no way affects the applicant's right to pursue a claim for the Bronze Star Medal by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

2.  While the FSM's DA Form 20 shows he had a gunshot wound to the right foot, a DD Form 261 indicates this was an accidentally self-inflicted wound.  He was not shown as wounded on either the Korean Casualty File or the Vietnam Casualty Roster.

3.  There is no evidence in the FSM's available military personnel records or any corroborating evidence provided by the applicant which shows the FSM was wounded or injured as a result of hostile action, that the wound required treatment by medical personnel, or that the medical treatment for such a wound was made a matter of official record.  As a result, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  Therefore, there is insufficient basis for adding this award to the FSM's last DD Form 214.
4.  WD AGO Forms 0365 and his DA Form 20 indicate that while the FSM was engaged in military operations involving conflict with an opposing foreign force he was taken as a prisoner of war during the period 9 February 1951 to 21 August 1953.  As such, it would be appropriate to add the Prisoner of War Medal to his last DD Form 214.  Additionally, the entry, "PRISONER OF WAR, (E Company, 21st Regiment/Korea) (9 February 1951 to 21 August 1953)" should be added to item 30 (Remarks) of this form.

5.  The FSM's DA Form 20 and a letter with the subject of Eligibility of Awards show he was entitled to or already received the following:

* Good Conduct Medal (2d award)
* Army of Occupation Medal with Japan Clasp
* National Defense Service Medal (2d award)
* Korean Service Medal with two bronze service stars for participation in the CCF Intervention and First UN Counteroffensive campaigns
* United Nations Service Medal 
* RVN Campaign Medal
* Expert Marksmanship Qualification Badge with Rifle (M-14) Bar
* Expert Marksmanship Qualification Badge with Pistol (.45 caliber) Bar

As such, it would be appropriate to add these awards and badges to the FSM's last DD Form 214.

6.  General orders awarded the FSM's unit the Valorous Unit Award, RVN Gallantry Cross with Palm Unit Citation, and RVN Civil Actions Honor Medal First Class Unit Citation which are not shown on his DD Form 214.  Therefore, he is entitled to correction of his DD Form 214 to show these unit awards.

7.  The available records show the FSM was awarded the Vietnam Service Medal and that he participated in three campaigns while serving in the RVN.  Therefore, he is entitled to correction of his DD Form 214 to show the already authorized Vietnam Service Medal with three bronze service stars.

8.  In view of the foregoing, it would be appropriate to correct the FSM's records as shown below.







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 the last DD Form 214 of the individual concerned be corrected by:

	a.  deleting from item 24 the list of awards shown; and

	b.  adding to item 24 the Valorous Unit Award, Prisoner of War Medal, Good Conduct Medal (2d Award), Army of Occupation Medal with Japan clasp, National Defense Service Medal with 2 bronze service stars, Korean Service Medal with two bronze service stars, Vietnam Service Medal with three bronze service stars, RVN Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit Citation, United Nations Service Medal, RVN Campaign Medal, Expert Marksmanship Qualification Badge with Rifle (M-14) Bar and the Expert Marksmanship Qualification Badge with Pistol (.45 caliber) Bar.

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 Purple Heart and Bronze Star Medal.



      ___________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)                                         AR20100000539



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ABCMR Record of Proceedings (cont)                                         AR20100000539



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