IN THE CASE OF:	  

		BOARD DATE:	    25 August 2011

		DOCKET NUMBER:  AR20110002282 


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 reconsideration of his previous application for correction of his DD Form 214 (Report of Separation from the Armed Forces of the United States) to show award of the Purple Heart.

2.  In addition, he requests, correction of his DD Form 214 to show award of the Republic of Korea War Service Medal, Parachutist Badge, and Medal of Honor as new issues.  

3.  The applicant states the following injuries are justification for award of the Purple Heart:

* shot in the right rib and right foot
* shrapnel above his right eye
* malaria
* spinal, leg, foot, and back surgeries
* steel pins in his right foot
* suffers from dementia, post traumatic stress disorder, and Alzheimer’s disease

4.  The applicant further states he received the Purple Heart while hospitalized in Japan; however, it disappeared prior to his release.  

5.  The applicant provides:

* a self-authored statement
* Congressional Correspondence
* a letter of support from a fellow Korean War Veteran
* a picture
* an article entitled “That’s What a Rakkasan Does”
* a letter of appreciation from Brigadier General Westmoreland
* a Standard Form (SF) 509 (Medical Record – Progress Notes), dated
19 May 1994
* an SF 522 (Request for Administration of Anesthesia and for Performance of Operations and Other Procedures)
* a letter his spouse wrote to the National Purple Heart Hall of Honor 

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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20040000261 on 28 October 2004.

3.  The applicant provided a self-authored letter to a Senator and a letter written by the applicant's spouse to the National Purple Heart Hall of Honor.  These items were not previously reviewed by the ABCMR; therefore, they are considered new evidence and as such warrant consideration by the Board.

4.  The applicant's complete military service record is 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 may have been lost or destroyed in that fire.  However, there were sufficient medical and personnel documents on file to conduct a fair and impartial review of this case.

5.  The applicant’s record shows he was inducted into the Army of the United States on 24 May 1951.  He successfully completed training and was awarded specialty 71666 (Medical Aide Man).  He was honorably discharged and transferred to the Enlisted Reserve Corps on 6 May 1953.  The highest rank/grade he attained while serving on active duty was corporal/E-4.  

6.  His DD Form 214 for the period ending 6 May 1953, item 29 (Wounds Received as a Result of Action with Enemy Forces), contains the entry “None” and the Purple Heart is not included in the list of awards in item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized).  

7.  The applicant’s record is void of any orders or other documents which indicate he was recommended for or awarded the Purple Heart by proper authority while serving on active duty.

8.  During the processing of this case, a member of the Board's staff again reviewed the Department of the Army (DA) Korean casualty listing.  Again, there was no entry pertaining to the applicant on this listing.

9.  The DD Form 214 he was issued shows in item 26 (Foreign and/or Sea Service) he completed 1 year, 4 months, and 21 days of foreign service.  Item 27 lists his awards as follows:

* Army of Occupation Medal (Japan)
* Korean Service Medal with 1 bronze service star
* United Nations Service Medal
* Combat Medical Badge
 
10.  On 22 September 1986, the applicant was issued a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) which shows he was awarded the Parachutist Badge.  Therefore, this issue will not be further discussed in this Record of Proceedings.  A copy of this DD Form 215 will be provided to him.

11.  His available record does not contain a record of a commander's disqualification for award of the Army Good Conduct Medal and his record is void of any conduct and efficiency ratings throughout his service.  However, his available record show he was inducted in the rank/grade of private          (PVT)/E-1 and was separated in the rank/grade of corporal (CPL)/E-4 with no lost time. 

12.  The applicant provides a self-authored statement which gives account of his being given the Purple Heart while in the hospital in Japan only to have it disappear before he was released.
13.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.  

14.  Army Regulation 600-8-22 states that 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 1954.  The service prescribed must have been performed as follows (1) while on permanent assignment; (2) while on temporary duty within the territorial limits of Korea or on waters immediately adjacent thereto for 30 consecutive days or 60 nonconsecutive days; or (3) while as crew members of aircraft, in aerial flight over Korea participating in actual combat operations or in support of combat operations.

15.  Army Regulation 600-45 (Decorations), dated 27 June 1950, stated the “Medal of Honor is awarded, in the name of Congress, to each person who, while an officer or enlisted person of the Army, shall have distinguished himself or herself conspicuously by gallantry and intrepidity at the risk of his or her life above and beyond the call of duty in action involving actual conflict with an enemy.”  The deed performed must have been one of personal bravery or self-sacrifice above and beyond the call of duty, so conspicuous as to clearly distinguish the individual for gallantry and intrepidity above his or her comrades and must have involved risk of life or performance of more-than-ordinarily hazardous service, the omission of which would not justly subject the person to censure for shortcoming or failure in the performance of duty.  Incontestable proof of the performance of the service would be extracted and each recommendation for the award of this decoration would be considered on the standard of extraordinary merit. 

16.  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.  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.

17.  Army Regulation 600-8-22 states the Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  Although there is no automatic entitlement to the Army Good Conduct Medal, disqualification must be justified.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to award of the Purple Heart due to wounds he received as the direct result of a hostile action was carefully considered and it was determined there is insufficient evidence to support this contention.  

2.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for this decoration; rather, the individual is entitled to it upon meeting specific criteria.  Award of the Purple Heart requires a Soldier to have been injured or wounded by hostile action, the wound must have required treatment by medical personnel, and the medical treatment for wounds or injuries received in action must have been made a matter of official record.

3.  Although he claims he was awarded this medal while in the hospital in Japan, there is no evidence in his records and he did not provide any evidence which shows he was wounded or injured as a result of hostile action or treated for such wounds or that his treatment was made a matter of official record.  In the absence of evidence which shows he was wounded or injured as a result of hostile action and treated for those wounds, regrettably, there is insufficient evidence upon which to base award of the Purple Heart.
  
4.  His contention that is entitled to award of the Republic of Korea War Service Medal and Medal of Honor has been determined to have partial merit.

5.  With respect to the Republic of Korea War Service Medal, his               DD Form 214 shows he completed 1 year, 4 months, and 21 days of foreign service and was awarded the Korean Service Medal.  It is reasonable to presume he completed a sufficient period of foreign service in Korea which would make him eligible for this award.  Therefore, he is entitled to correction of his records to show award of the Republic of Korea War Service Medal.

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

7.  The evidence of record confirms he served honorably during the period 24 May 1951 through 6 May 1953.  His available record does not contain any derogatory information which would have disqualified him from receiving the Army Good Conduct Medal (1st Award).  In addition, his available record show he was inducted in the rank/grade of private (PVT)/E-1and was separated in the rank/grade of corporal (CPL)/E-4 with no lost time. Therefore, it would be appropriate to award him this medal based on completion of a qualifying period of Federal military service from 24 May 1951 through 6 May 1953 and correcting his DD Form 214 show this award.

8.  The action in regard to the Purple Heart in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  In regard to award of the Purple Heart, 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 to amend the decision of the ABCMR set forth in Docket Number AR20040000261 on 28 October 2004.

2.  In regard to the new issues, the Board determined 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 awarding him the Army Good Conduct Medal (1st Award) for the period 24 May 1951 through 6 May 1953 and adding the Republic of Korea War Service Medal and Army Good Conduct Medal to his DD Form 214.

3.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief in regard to the new issues.  As a result, the Board recommends denial of so much of the application that pertains to correcting his DD Form 214 to show the Medal of Honor.




      _______ _  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)                                         AR20110002282



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ABCMR Record of Proceedings (cont)                                         AR20110002282



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