IN THE CASE OF:	  

		BOARD DATE:	  27 January 2011

		DOCKET NUMBER:  AR20100015952


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 he receive combat pay for the 3 years he was a prisoner of war (POW) in North Korea.  He also states that he should be awarded the Bronze Star Medal.

2.  The applicant states:

* other branches of military received combat pay during internment
* the military says they paid POWs, but none of “us” got the pay
* he would like it to be recognized that he did not get combat pay
* he was awarded the Bronze Star Medal by a named general, but because of a clerical change in the order, he did not get the award
* he was told he had to be present for duty the day of the award
* he stood his ground as ordered during a tank and infantry attack
* these are matters of principal; it is not about the money

3.  The applicant provides:

* his WD AGO Form 53 (Enlisted Record and Report of Separation) for the period ending 4 December 1947
* his DD Form 214 (Report of Separation from the Armed Forces of the United States) for the period ending 4 February 1954
* a letter from a U.S. Senator, dated 11 May 2010
* 
a U.S. Senate Privacy Act Release Statement, dated 5 May 2010
* an undated, self-authored statement

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 that the applicant’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.  With 1 year, 3 months, and 20 days of prior active service, the applicant enlisted in the Army for 3 years on 22 December 1948.  

4.  He was honorably discharged on 4 February 1954.  The DD Form 214 he received shows that he had 3 years, 7 months, and 29 days of foreign and/or sea service.  His DD Form 214 also shows that he was a POW in Korea during this period of enlistment.

5.  During the review of this case there were no pay records available.  There is no evidence in the available record showing that orders were published awarding him the Bronze Star Medal.

6.  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.  

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

8.  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:  Commander, U.S. Army Human Resources Command, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122.  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.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) paragraph 2-9 provides that the Board begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.

2.  There is no evidence in the available record, nor has the applicant submitted any evidence, showing that did not receive his pay when he was repatriated.  In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

3.  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 Bronze Star Medal by submitting a request through his Member of Congress under the provisions of Title 10, U.S Code, section 1130.

4.  In view of the foregoing, the applicant's request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  _____X__  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



      ____________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)                                         AR20090005994



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ABCMR Record of Proceedings (cont)                                         AR20100015952



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