BOARD DATE:	  15 March 2012

		DOCKET NUMBER:  AR20110017145 


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 Silver Star and the Purple Heart.

2.  The applicant states:

* These awards are not recorded on his DD Form 214
* He was shot by the enemy in the right arm
* He was medically evacuated out of Korea and then placed on the Temporary Disability Retired List (TDRL)

3.  The applicant provides his DD Form 214.

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 enlisted in the Regular Army on 20 September 1950 for a period of 3 years.  He served as an infantryman in Korea.

3.  His record contains a WD AGO Form 0365 (Battle Casualty Report), dated
25 April 1951, that shows the applicant was slightly wounded in action in Korea on 12 April 1951.  This report also contains casualty code "FRIAR" which refers to being slightly wounded or injured as a result of hostile action.

4.  On 31 March 1953, he was retired and placed on the TDRL.  He completed
2 years, 6 months, and 11 days of net service for pay.  The DD Form 214 he was issued at the time shows in:

* item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) the:

* Combat Infantryman Badge
* Korean Service Medal with two bronze service stars
* United Nations Service Medal

* item 29 (Wounds Received as a Result of Action with Enemy Forces) the entry "None"

5.  Review of the Korean War casualty listing shows the applicant's name is listed as a casualty on 12 April 1951.

6.  There are no orders for the Silver Star or Purple Heart in the available records.

7.  The applicant's record does not contain any disciplinary actions or a commander's disqualification that would have precluded him from being awarded the first award of the Army Good Conduct Medal.

8.  His record contains a DD Form 230 (Service Record) for the period
20 September 1950 to 31 May 1953.  Section 17 (Endorsements) shows that during his service he received conduct and efficiency ratings of "excellent," "unknown," or no entry.  Section 18 (Report of Separation) shows his character and efficiency rating was "unknown" at the time of separation.  It also shows he was favorably considered for the Good Conduct Medal or clasp.

9.  On 30 June 1954, the applicant was removed from the TDRL and permanently retired with a 70 percent (%) disability rating percentage.

10.   Army Regulation 600-8-22 (Military Awards) provides Department of the Army policy, criteria, and administrative instructions concerning individual military decorations, Army Good Conduct Medal, service medals and ribbons, combat and special skill badges and tabs, unit decorations, and trophies, and similar devices awarded in recognition of accomplishments.  It states:

	a.  the Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

	b.  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.

	c.  the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 and 27 July 1954, 1 January 1961 and 14 August 1974, 2 August 1990 and 30 November 1995, and 11 September 2001 and a date to be determined.

	d.  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 non-consecutive days within the territorial limits of Korea or the waters immediately adjacent thereto.

11.  Army Regulation 600-65 (Service Medals), 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, including those pertinent to attendance at service schools, 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.


12.  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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The WD AGO Form 0365 and Korean War casualty listing confirm the applicant was wounded in action as a result of hostile action in Korea on 12 April 1951.  Therefore, he is entitled to award of the Purple Heart and correction of his DD Form 214 to show this award.

2.  He served a period of qualifying service for entitlement to the National Defense Service Medal and Republic of Korea War Service Medal.  Therefore, his DD Form 214 should be corrected to show these awards.

3.  There is no evidence of any disciplinary actions or a commander disqualification for the first award of the Army Good Conduct Medal.  Although his Service Record does not contain an "excellent" character and efficiency rating by each endorser (some show "unknown" and others are blank), the final separation endorser indicated the applicant was favorably considered for the Army Good Conduct Medal.  Therefore, it would be appropriate at this time to award him the Army Good Conduct Medal for the period 20 September 1950 through 31 March 1953 and to correct his DD Form 214 to show this award.

4.  There is no evidence and the applicant did not provide any evidence that shows he was recommended for or awarded the Silver Star.  Therefore, there is an insufficient evidentiary basis for granting this portion of his request.

5.  While the available evidence is insufficient for awarding the applicant the Silver Star, this in no way affects the applicant’s right to pursue his claim for the Silver Star by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

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 Purple Heart for wounds received in action in Korea as a result of hostile action on 12 April 1951,

	b.  adding to item 27 of his DD Form 214 the:

* Purple Heart
* Army Good Conduct Medal (1st Award)
* National Defense Service Medal
* Republic of Korea War Service Medal

	c.  deleting from item 29 of his DD Form 214 the entry "None" and replacing it with the entry "Korea, 12 April 1951."


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 awarding him the Silver Star and adding it 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)                                         AR20110017145



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110017145



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1