IN THE CASE OF:	  

		BOARD DATE:	  12 October 2010

		DOCKET NUMBER:  AR20100009265 


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 Bronze Star Medal, Army Good Conduct Medal, promotion consideration to a higher rank, and the records of the 7th Infantry Regiment, 3rd Infantry Division awards ceremony that occurred on the 153rd anniversary of the regiment.

2.  The applicant states, in effect, that he received the Bronze Star Medal during a regimental award ceremony on or about 30 January 1951 while stationed in the Republic of Korea.  He states, in a separate letter, that he no longer claims entitlement to this Bronze Star Medal because his personnel file does not support this award.  As his record does not support this award, he asks for assistance in locating the unit records for the 7th Infantry Regiment awards ceremony.  He states did receive a regimental unit personnel roster based upon an earlier request; however, this roster did not contain any awards information.  He would like to know who got what and for what reason.  He concludes by stating the Silver Star citation he received is inaccurate and does not accurately reflect what happened during combat operations in Korea.

3.  In a second letter to the Board, dated 11 March 2010, the applicant states, in effect, that he was not advised that any conduct on his part could preclude him from receiving the award of the Army Good Conduct Medal.  He states the one transgression that he recalls is he reported back late to the hospital at Fort Sam Houston, TX, but only after informing his unit he would be late.  He cites his limited finances at the time was his reason for being late.  He concludes his second letter by stating he retired as a private first class, stating this is unconscionable.  He believes he was not promoted because he was a patient.  
4.  The applicant provides a copy of the following documentary evidence:

	a.  his DD Form 214 (Report of Separation from the Armed Forces of the United States) for the period ending 31 October 1952;

   b.  General Orders Number 29, issued by Headquarters, 3rd Infantry Division, dated 30 January 1951, announcing his award of the Silver Star for gallantry in action on 28 November 1950 near Sackang-ni, Korea;

	c.  General Orders Number 54, issued by the Tokyo Army Hospital, dated 26 February 1951, announcing his award of the Purple Heart for wounds received in action on 15 February 1951;

	d.  a casualty report stating he was wounded in action by a short 105mm round on 15 February 1951; 

	e.  a letter from his Congressman to his parents, dated 14 August 1952; and 

	f.  multiple newspaper clippings.

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 requested a copy of the records of the 7th Infantry Regiment, 3rd Infantry Division awards ceremony that occurred on the 153rd anniversary of the regiment.  There is no evidence of record that shows an award ceremony was held in Korea on the 153rd anniversary of his unit's initial activation.  Therefore, this portion of the applicant's request will not be discussed further in these Proceedings.



3.  The applicant enlisted in the Regular Army on 29 May 1950 at the age of 17 years and 6 months.  He completed his initial entry training and then served as an Infantryman.

4.  Records show the applicant served in the Republic of Korea from 17 November 1950 to 17 February 1951.  While in Korea he was assigned to Company D, 7th Infantry Regiment, 3rd Infantry Division, U.S. Army Pacific - Korea.  On 30 January 1951, general orders were published announcing award of the Silver Star for his gallant actions in combat on 28 November 1950.  Then on 15 February 1951, the applicant was seriously wounded in action and medically evacuated from Korea to a military hospital in Tokyo, Japan.

5.  Section 12 (Appointments, Promotions, or Reductions) of the applicant's WD AGO 24A (Service Record) shows his rank progression as follows:

* Recruit, 29 May 1950
* Private (Temporary), 4 September 1950
* Private First Class (Temporary), 6 November 1950

6.  Section 15 (Time Lost under Article of War 107) of the applicant's WD AGO 24A shows he had two periods of being absent without leave (AWOL) as follows:

* 9 August to 10 August 1951 (2 days)
* 1 March 1952 to 2 March 1952 (2 days)

7.  Section 21 (Medals, Decorations, and Citations) of the applicant's WD AGO 24A shows the applicant received the following awards:

* Army of Occupation Medal-Japan
* Combat Infantryman Badge 
* Silver Star
* Purple Heart
* Korean Service Medal

8.  Section 24 (Endorsement) of the applicant's WD AGO 24A shows he was favorably considered for award of the Army Good Conduct Medal on two occasions.  The first endorsement was on 16 September 1950 and the second was 15 February 1951 with both commanders giving him "excellent" character and efficiency ratings.  During his hospitalization and convalescent periods, his character and efficiency ratings were "unknown" with no favorable or unfavorable considerations made for award of the Army Good Conduct Medal.

9.  On 12 June 1951, the applicant's commander at Brooke Army Medical Center, Fort Sam Houston, wrote a letter to The Adjutant General of the Army requesting a copy of the general order and citation that awarded the applicant the Bronze Star Medal.  In the letter, the commander stated the applicant had indicated he received the Bronze Star Medal while stationed in the Republic of Korea on
30 January 1951.

10.  On 10 July 1951, The Adjutant General of the Army responded to the commander's inquiry.  This letter stated that no records could be found in the office of the Adjutant General of the Army to show the applicant was ever recommended for or awarded the Bronze Star Medal.

11.  The applicant's service record contains an AGO Form 01464 (Determination of Grade for Retirement, Advancement, Separation or Retirement Pay - Enlisted Personnel) that shows the highest grade he held upon retirement was private first class in pay grade E-3.

12.  There is no evidence the applicant received the first award of the Army Good Conduct Medal.  There also is no evidence the applicant was disqualified by his chain of command from receiving the Army Good Conduct Medal.  His records do contain adverse information showing his was reported AWOL on two separate occasions for a total of 4 days.  However, there are no records of punishment under the Uniform Code of Military Justice for his two absences.

13.  The applicant was retired from active duty on 31 October 1952 under the provisions of Army Regulation 600-450 (Separation for Physical Disability), by reason of permanent disability.  He was issued a DD Form 214 that confirms he completed 2 years, 4 months, and 28 days of active service with 4 months and 20 days of foreign service.

14.  Item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows the following awards:

* Army of Occupation Medal with Japan Clasp
* Purple Heart 
* Silver Star 
* Combat Infantryman Badge 
* Korean Service Medal with one bronze service star

15.  On 26 February 1999, an official at U.S. Army Reserve Personnel Command, St. Louis, MO, responded by letter to an inquiry from the applicant's 


Congressman.  In this letter, the Congressman was informed that the applicant's personnel service records did not contain general orders announcing award of the Bronze Star Medal.  Therefore, his request for the Bronze Star Medal could not be favorably considered.  Continuing with a clarification, the official advised the Congressman that the bronze service star shown on the applicant's DD Form 214 shows the applicant participated in one designated campaign during operations in the Republic of Korea.  These letters concluded by recommending the applicant apply to the ABCMR.

16.  In support of his application, the applicant provided the following documentary evidence:

	a.  an undated newspaper clipping which states the applicant "HAS BEEN AWARDED THE BRONZE STAR MEDAL.  HE WAS AMONG 11 OFFICERS AND MEN OF THE U.S. ARMY'S THIRD DIVISION, SEVENTH REGIMENTAL COMBAT TEAM GIVEN AWARDS . . . ON THE 153RD ANNIVERSARY OF THE REGIMENT."

	b.  The Huntsville Times newspaper clipping, dated 7 January 1951, states the applicant "HAS BEEN RECOMMENDED FOR THE BRONZE STAR, THE FRONT LINE WRITER WROTE . . .  ACCORDING TO THE LETTER WRITTEN FROM A FOXHOLE IN NORTH KOREA SHORTLY AFTER CHRISTMAS."  He continues:

(me) and a buddy were left behind at a command post when everyone took off for the hills during a night attack by the Chinese.  We climbed into a hole outside of the C.P. (command post).  The bullets were popping inches over our heads.  The five Chinese came running up to the C.P. about 15 yards from us.  I cut them all down at once with my M-1 . . . then the sixth one ran up, and I cut him down.

	c.  The Huntsville Times newspaper clipping, dated 18 March 1952, shows a picture of the applicant sitting in a hospital bed receiving the Purple Heart with a caption that reads (the applicant) "IS AWARDED THE PURPLE HEART FOR WOUNDS RECEIVED WHILE FIGHTING IN KOREA ON FEB. 14, 1951 WITH THE SEVENTH INFANTRY REGIMENT."

	d.  An undated clipping describes the first 24 hours of heavy combat encountered by the 3rd Infantry Division where the Soldiers learned a lot about the Chinese weapons and their style of fighting.  The article continues describing the multiple individual weapons and crew-served weapons the Chinese Army used during its combat operations with U.S. Forces.
	e.  An undated newspaper clipping titled, "TEENAGER GI SLAYS 6 CURIOUS COMMIES," describes how the applicant, at 18 years old, defended his unit's CP when it was attacked by Chinese soldiers by shooting and killing six enemy soldiers.

	f.  The Huntsville Times newspaper photograph and caption, dated 3 August 1952, shows the applicant shaking hands with his father after an award ceremony at Fort Benning, GA.  The picture shows the applicant's father congratulating the applicant on receiving the Silver Star.  The caption reads as follows:

(The applicant) was decorated for gallantry while serving with the Third Infantry Division in Korea.  When his position was attacked and almost run over, (the applicant) though wounded, held the position and repelled enemy attacks of platoon strength.  He is credited with killing six of the enemy.

17.  Title 10, U.S. Code, section 1130, provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration.  Based upon such review, the Secretary shall determine the merits of approving the award.

18.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  U.S. Army Human Resources Command, Soldier Programs and Services Division, AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122.  The unit must be clearly identified, along with the period of assignment and the recommended award.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request best provide supporting evidence.  The burden and costs for researching and assembling supporting documentation rest with the applicant.

19.  References:

	a.  Army Regulation 600-8-22 (Military Awards) states the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy, or while engaged n military operations involving conflict with an opposing armed force in which the United States is not a belligerent party.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  The order of precedence for authorized U.S. Army and Department of Defense decorations shows the Silver Star is of higher precedence than award of the Bronze Star Medal.

	b.  Army Regulation 600-8-22 states a bronze service star is worn on the appropriate service ribbon, to include the Korean Service Medal, for each credited campaign.  A silver service star is authorized in lieu of five bronze service stars.

	c.  Army Regulation 672-5-1 (Military Awards) superseded Army Regulation 600-45 in 1957.  This regulation provided that interim awards could be presented to a deserving Soldier to insure prompt recognition of an act, achievement, or service.  The award of a suitable lesser military decoration may be made by appropriate authority pending final action on a recommendation for a higher award.  Only one military decoration will be awarded for the same act, achievement, or period of meritorious service.  An award for meritorious service may include meritorious achievements, but duplicating awards will not be made for meritorious achievement and meritorious service involving the same period of time.  If appropriate, an award may be made to include the extended period of service by superseding the earlier award, or if considered appropriate by the awarding authority, and desired by the individual, the award previously made may be amended to incorporate the extended period of service.  Further an award for heroism performed within a period which is recognized by an award for meritorious service is not duplication.

	d.  Army Regulation 600-65, in effect at the time, stated the Army Good Conduct Medal 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.  A Soldier's conduct and efficiency ratings must have all been recorded as "excellent" or higher, except that ratings of "unknown" for portions of the period under consideration would not be disqualifying.  There must have been no convictions by court-martial.  However, there was no right or entitlement to the medal until the immediate commander made a positive recommendation for its award and until the awarding authority announced the award in general orders.


	e.  Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR will review all applications that are properly presented before them to determine the existence of error or injustice.  Requests are personal to the applicant and relate to military records.  The ABCMR will then direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence of record exists.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was awarded the Bronze Star Medal during an award ceremony in Korea.  Additionally, he contends he should receive the Army Good Conduct Medal and consideration for promotion to a higher rank.

2.  Starting in 1951 after the applicant's return to the continental United States by military medical evacuation and with the support of his chain of command and Congressman, the applicant has requested copies of the general orders announcing award of the Bronze Star Medal.  Through newspaper clippings, the applicant has consistently stated he received this military decoration during a special awards ceremony while still in Korea. 

3.  After reviewing the newspaper clippings, the Silver Star citation, and his personnel service records, it is highly likely the applicant was presented with a Bronze Star Medal as an interim award pending disposition of his recommendation for the Silver Star.  It is customary for commanders in the field to present an impact award of a lower precedence to deserving Soldiers.  There are no orders or documentary evidence to show the Bronze Star Medal was formalized and made a matter of official record.  However, orders and other pertinent documents do exist formally awarding him the Silver Star.

4.  What is known is the applicant did receive the Silver Star, a higher precedent award than the Bronze Star Medal, for his gallant actions repelling an enemy attack of platoon size strength from his unit's CP by killing or wounding six enemy soldiers.  The date of his gallant actions was 28 November 1950.  The Silver Star was awarded by general orders on 30 January 1951.  Service records confirm physical presentation of the Silver Star was made on 26 April 1952 at Fort Benning.  While this in no way diminishes the fact no orders were published awarding him the Bronze Star Medal, it shows that his chain of command was in such high regard of his gallant actions that the commanding general of the
3rd Infantry Division approved their recommendation to award him the higher level award of the Silver Star.

5.  If the applicant believes he is eligible for the Bronze Star Medal for a completely different action, while the available evidence is insufficient for awarding him a Bronze Star Medal this in no way affects his right to pursue his claim for the Bronze Star Medal.  He may submit his request on a DA Form 638, with personal accounts from eyewitnesses, through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130 to the Department of the Army Awards Board for its review and consideration. 

6.  Notwithstanding his two short periods of AWOL, the evidence of record includes two favorable recommendations by former unit commanders with "excellent" conduct and efficiency marks and no record of courts-martial or adverse action.  As such, it appears the applicant did not receive his first award of the Army Good Conduct Medal based on an administrative error.  Therefore, it would be appropriate to award the applicant the Army Good Conduct Medal for his term of service from 29 May 1950 through 31 October 1952, which ended with his retirement due to permanent physical disability.

7.  Based on the evidence of record, the applicant's rank and pay grade shown on his DD Form 214 is correct.  Upon the applicant's permanent retirement from the U.S. Army, his service records show his highest rank and grade held was private first class in pay grade E-3.

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 him the Army Good Conduct Medal (first award) for the period
29 May 1950 through 31 October 1952; and

	b.  adding to item 27 of his DD Form 214 with a separation date of 31 October 1952 to show award of the Army Good Conduct Medal 
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 Bronze Star Medal and promotion to a higher enlisted rank and grade.



      ____________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)                                         AR20100009265



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ABCMR Record of Proceedings (cont)                                         AR20100009265



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