IN THE CASE OF:	  

		BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20100027625 


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, correction to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 15 December 1962 to show two awards of the Purple Heart and his prisoner of war (POW) status.

2.  He states his records do not show he was awarded the Purple Heart twice due to a bullet in his left leg and shrapnel in his head.  He was also a POW for 2 years, 3 months, and 2 days in North Korea.  He just received copies of military documentation for his Department of Veterans Affairs claims.  There is a DD Form 215 (Correction to DD Form 214, Armed Forces of the United States Report of Transfer or Discharge) showing corrections, but it does not show his medals and POW status.

3.  He provides:

* WD AGO Form 53 (Enlisted Record and Report of Separation – Honorable Discharge)
* Far East Command (FEC) AGO Form 241 (Casualty Report)
* memorandum, subject:  Roster of Missing in Action (MIA) Personnel
* memorandum for record, subject:  Review and Determination of Status Under the Missing Persons Act
* Battle Casualty Report
* memorandum, subject:  Recommendation for Board Proceedings of Recaptured Prisoner

* 1962 and 1966 DD Forms 214
* DD Form 215, dated 22 October 1970

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 show he enlisted in the Regular Army in pay grade E-1 on 30 October 1946.  He completed training and was awarded military occupational specialty 103 (Laundry Machine Operator).  He served in the American theater of operations from 5 March 1947 to 12 March 1948.  He was honorably discharged from active duty in pay grade E-3 on 17 March 1948 prior to the expiration of his term of service.  Item 33 (Decorations and Citations) of his WD AGO Form 53 lists the World War II Victory Medal.

3.  He again enlisted in the RA in pay grade E-3 on 18 April 1948 for 3 years.

4.  An FEC AGO Form 241 prepared on 23 August 1951 remarked that he was MIA while the company was in defensive action against the enemy in South Korea on 18 May 1951.  A muster was taken following the attack and the applicant was not present.

5.  A Roster of MIA Personnel, dated 20 March 1952, shows he was determined to be MIA on 18 May 1951 in the vicinity of Mug-Gol, South Korea, and appeared as a POW on the enemy list of 18 December 1951.  He was assigned to Company B, 38th Infantry Regiment.

6.  Pursuant to the provisions of General Orders Number 39, dated 1 May 1953, he was promoted to sergeant/pay grade E-5 effective 1 May 1953 with a date of rank of 17 June 1951.

7.  A Battle Casualty Report, dated 21 August 1953, advised his parents that he was in satisfactory condition and was returned to military control on 21 August 1953.

8.  He reenlisted in the RA in pay grade E-5 on 15 August 1956 for 6 years.  He was honorably discharged for the purpose of immediate reenlistment on 15 November 1962.  

9.  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 lists the following awards:

* letter of appreciation
* Sharpshooter Marksmanship Qualification Badge with Pistol Bar (.45 caliber)
* Sharpshooter Marksmanship Qualification Badge with Carbine Bar
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-1)

10.  Item 27 (Wounds Received as a Result of Action with Enemy Forces) contains the entry, "None."

11.  Item 40 (Awards and Decorations) of his DA Form 20 (Enlisted Qualification Record) lists the following:

* Combat Infantryman Badge
* Korean Service Medal
* United Nations Service Medal
* National Defense Service Medal
* World War II Victory Medal
* Army Good Conduct Medal
* Sharpshooter Marksmanship Qualification Badge with Carbine Bar
* Sharpshooter Marksmanship Qualification Badge with Pistol Bar (.45 caliber)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-1)
* National Defense Service Medal with one oak leaf cluster

12.  Item 41 (Wounds) of his DA Form 20 contains the entry, "wounded in leg and head, 18 May 1951."  There is no indication of a second injury/wound in his records.

13.  He again reenlisted in the RA on 16 November 1962 for 6 years.  He was honorably retired in pay grade E-5 on 31 December 1966.

14.  Item 26 of his DD Form 214 lists the following awards:

* National Defense Service Medal with one oak leaf cluster
* Good Conduct Medal
* Army Commendation Medal

15.  Item 27 contains the entry, "None."

16.  On 22 October 1970, he was issued a DD Form 215 adding the following to item 32 (Remarks) of his DD Form 214 for the period ending 15 December 1962:

* enlisted on 13 April 1948 for 3 years
* honorably discharged on 15 October 1953 to reenlist
* reenlisted on 16 October 1953 for 3 years
* honorably discharged on 14 August 1956 to reenlist
* reenlisted on 15 August 1956 for 6 years

17.  The Korean Casualty List shows he was wounded on 18 May 1951.  There is no entry showing he was injured/wounded a second time during this period of service.

18.  The National Archives and Records Administration Records of Repatriated Korean POW's, created 1978-1980, for the period 5 July 1950 to 6 October 1954 lists the applicant as having been captured on 18 May 1951 and released on 21 August 1953.

19.  Section 521a of the National Defense Authorization Act of 1996 authorized award of the Purple Heart to any former POW who was wounded before 25 April 1962 while held as a POW or while being taken captive in the same manner as a former POW who was wounded on or after that date.  Section 521b specifically stated that award of the Purple Heart for POW's under section 521a shall be made in accordance with the standards in effect on the date of the enactment of this act to persons wounded on or after 25 April 1962.

20.  Army Regulation 600-8-22 (Military Awards) states a Purple Heart was authorized for the first wound suffered under the above conditions, but for each subsequent award an oak leaf cluster would be awarded.  Not more than one award would be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent.

21.  Army Regulation 600-8-22 states the POW 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 POW 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:

* while engaged in an action against an enemy of the United States
* while engaged in military operations involving conflict with an opposing foreign force
* 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
* 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

22.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing discharge documents.  It directs that in the case of POW's, the unit of assignment, country, and dates of capture and release will be entered in the "Remarks" section of the discharge document.

23.  Army Regulation 600-8-22 also states the Republic of Korea War Service Medal is awarded to members of the U.S. Armed Forces who served in Korea and adjacent waters between 25 June 1950 and 27 July 1953.  The service must have been performed, in part, while on permanent assignment for 30 consecutive days or on temporary duty for 30 consecutive or 60 nonconsecutive days within the territorial limits of Korea or the waters immediately adjacent thereto.

24.  Army Regulation 600-822 further states authorized bronze service stars will be worn on the appropriate campaign or service medal including the Korean Service Medal.    

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was wounded in the leg and head on 18 May 1951 as a result of hostile action when he was captured as a POW in South Korea.  His name is also listed on the Korean Casualty List.  Therefore, he is entitled to award of the Purple Heart and to have this award added to his 1962 and 1966 DD Forms 214.

2.  There is no evidence of record and he provided none to show he ever sustained or was treated for wounds received as a result of hostile action on an occasion other than 18 May 1951 or that he was eligible for a second award of the Purple Heart based on two separate injuries on that date.  Therefore, he is not entitled to a second award of the Purple Heart and its addition to his DD Forms 214.

3.  The evidence of record also shows he was declared a POW as a result of his capture on 18 May 1951 while serving as a member of Company B, 38th Infantry Regiment.  He was returned to military control on 21 August 1953.  Therefore, he met the criteria for POW status and award of the POW Medal.

4.  It would appropriate to correct his DD Form 214 to show he was a POW from 18 May 1951 to 21 August 1953.  In accordance with regulatory guidance, the entry "prisoner of war, Company B, 38th Infantry Regiment, South Korea, 18 May 1951 to 21 August 1953" should be annotated on his separation document for the period ending 15 November 1962.

5.  His DA Form 20 further shows he was authorized awards of the Army Good Conduct Medal, World War II Victory Medal, National Defense Service Medal (2nd Award), Korean Service Medal, United Nations Service Medal, and Combat Infantryman Badge.  Therefore, he is further entitled to correction of his 1962 and 1966 DD Forms 214 to show these awards.

6.  The evidence of record also shows he completed a qualifying period of service for award of the Republic of Korea War Service Medal and three bronze service stars to be affixed to his Korean Service Medal.  Therefore, he is entitled to correction of his DD Form 214 to show these awards.

7.  In view of the foregoing, his records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 the applicant the Purple Heart for wounds received on 18 May 1951 and the Prisoner of War Medal;
	b.  adding to item 26 of his 1962 and 1966 DD Forms 214 the following awards:

* Purple Heart
* Prisoner of War Medal
* Army Good Conduct Medal
* World War II Victory Medal
* National Defense Service Medal (2nd Award)
* Korean Service Medal with three bronze service stars
* United Nations Service Medal
* Republic of Korea War Service Medal
* Combat Infantryman Badge

	c.  adding to item 32 of his DD Form 214 for the period ending 15 November December 1962 the entry, "Prisoner of War, Company B, 38th Infantry Regiment, South Korea, 18 May 1951 to 21 August 1953"; and

	d.  providing him a document to include these changes.

2.  The Board further determined 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 a second Purple Heart and its addition to his DD Form 214.



      ____________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)                                         AR20100027625



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ABCMR Record of Proceedings (cont)                                         AR20100027625



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