IN THE CASE OF:	  

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100013449 


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) to show the Purple Heart, Bronze Star Medal, and to show his rank as sergeant.

2.  The applicant states he has been trying to get the Purple Heart for years.  He contends that he was recommended for the Bronze Star Medal but never heard anything else about it.  He adds that his DD Form 214 shows his rank as corporal but he was a sergeant.

3.  The applicant provides a DD Form 214, an Honorable Discharge Certificate, a Department of Veterans Affairs (DVA) Health Summary, a photograph of a Korean War era sergeant's rank insignia, and a photograph of two individuals wearing military uniforms.

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 for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed his 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.  His DD Form 214 shows that he enlisted in the Regular Army on 1 February 1950 for 3 years and he was honorably discharged on 1 February 1953 after completing 3 years and 1 day of active duty service.

4.  Headquarters, 4005th ASU, Fort Hood, TX, Special Orders Number 20, dated 29 January 1953, which directed his discharge from military service show his rank as corporal.

5.  Item 3 (Grade - Rate - Rank and Date of Appointment) of his DD Form 214 shows his rank as corporal (Temporary) with an appointment date of 22 October 1952.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the Combat Infantryman Badge, United Nations Service Medal, and the Korean Service Medal with five bronze service stars.  Item 29 (Wounds Received as a Result of Hostile Action with Enemy Forces) shows the entry "None."

6.  There are no available orders or any other documentation showing he was awarded or recommended for award of the Purple Heart or that he was wounded as a result of hostile action.  His name is not listed on the Korean War Casualty Roster.

7.  There is no evidence in his available records indicating he was awarded or recommended for the Bronze Star Medal.  There is no evidence indicating he held the rank of sergeant at the time of his separation from active duty.

8.  The assessment section in the DVA Health Summary provided by the applicant contains the entry "shrapnel wounds to the back."  This document does not specify how the shrapnel wounds were acquired.  He also provided a photograph of two individuals wearing military uniforms.  His name is hand-written on this photograph as to indicate he is one of the individuals in the photograph and that he is wearing the rank of sergeant on his uniform.

9.  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.

10.  Army Regulation 600-8-22 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.

11.  Title 10 of the U.S. Code, section 1130 (10 USC 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.

12.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  Commander,  U.S. Army Human Resources Command, ATTN:  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.  Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request.  The burden and costs for researching and assembling supporting documentation rest with the applicant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he is entitled to award of the Purple Heart, that he was recommended for the Bronze Star Medal, and that he held the rank of sergeant were carefully considered.

2.  However, there are no orders or any other documentation available showing that he was awarded or recommended for the Purple Heart or that he was wounded as a result of hostile action.  His name is not listed on the Korean War Casualty Roster.  While the sincerity of his claim is not in doubt, there simply is no evidence in the available record to support an entitlement to award of the Purple Heart.  Therefore, in the absence of evidence to show otherwise, it must be presumed that what the Army did at the time was correct.  Accordingly, there is no basis to award him the Purple Heart at this time.

3.  While the available evidence is insufficient for awarding him the Bronze Star Medal, this in no way affects his right to pursue his claim for the Bronze Star Medal by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

4.  His separation orders and DD Form 214 show he was separated in the rank of corporal. There is no evidence of record showing he held the rank of sergeant while on active duty.  While it is possible he had been an acting sergeant, the photograph provided by the applicant is insufficient evidence to establish that he was promoted to sergeant.  Therefore, there is no basis to correct his DD Form 214 to show his rank as sergeant.

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 him 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)                                         AR20100013449



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ABCMR Record of Proceedings (cont)                                         AR20100013449



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