BOARD DATE: 5 April 2012
DOCKET NUMBER: AR20110018085
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 the rank of first lieutenant and award of the Purple Heart be added to his DD Form 214 (Report of Transfer or Discharge).
2. The applicant states the Purple Heart is not listed on his DD Form 214 and his rank is incorrect.
3. The applicant provides copies of general orders, dated February 1953, awarding him the Purple Heart; special orders, dated July 1953, authorizing his release from active duty; a WD AGO 53-55 (Enlisted Record and Report of Separation-Honorable Discharge), ending on 16 November 1946; and a National Archives and Records Administration (NA) Form 13038 (Certificate of Military Service) from 28 October 1951 to 16 July 1953.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
Counsel states previously the same request was made and no action was taken because the proper documents were not available. It is believed the available evidence is sufficient to support the applicant's request.
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 applicants 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 applicants 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 complete military records are not available for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973. His records were destroyed, lost, or seriously damaged in that fire. However, sufficient documents are available to conduct a fair and impartial review of this case.
3. The applicant served in World War II from 3 February 1945 to 16 November 1946 as a first sergeant. He continued to serve in the Army National Guard (ARNG) and was mobilized for service in Korea.
4. The orders he submitted with his application, 343rd General Hospital, General Orders Number 5, dated 10 of February 1953, awarded him the Purple Heart for wounds sustained in action against the enemy on 29 January 1953.
5. Headquarters, Camp Carson, Colorado issued Special Orders Number 165, dated 15 July 1953, releasing the applicant from active duty, effective 16 July 1953. A DD Form 214 for this period of service is not available.
6. The NA Form 13038 that the applicant submitted with his application shows he served as a member of the National Guard of the United States from
28 October 1951 to 16 July 1953 and he was released from active duty in the rank of first lieutenant.
DISCUSSION AND CONCLUSIONS:
1. A DD Form 214 is not available for the applicant's Korean War service and information from that period cannot be retroactively added to his World War II WD AGO Form 53-55.
2. An NA Form 13038 was issued as a substitute for a DD Form 214 that was lost or destroyed. The applicant's rank of first lieutenant is shown on the NA Form 13038; therefore, no further action is required for that portion of his request.
3. Nevertheless, the applicant was awarded the Purple Heart and it should be shown in his military record.
BOARD VOTE:
__x___ __x______ ____x____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing the applicant an appropriate document to show the Purple Heart should be added to the NA Form 13038 for wounds sustained in action against the enemy on 29 January 1953.
_______ _ 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.
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