IN THE CASE OF:	  

		BOARD DATE:	  17 January 2013

		DOCKET NUMBER:  AR20120012567 


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 be awarded the Army Good Conduct Medal (AGCM) and that his DD Form 214 (Report of Separation from the Armed Forces of the United States) be corrected to show award of the Purple Heart Oak Leaf Cluster (1OLC).

2.  The applicant states he was not eligible for award of the AGCM due to an incident that occurred in January 1951; however, now that the timeframe for serving without disciplinary action has been changed from 3 years to 1 year, he should be eligible for the award.  He also states that he would like his DD Form 214 to reflect two awards of the Purple Heart (Purple Heart 1OLC).  He continues by stating that he was disciplined for a situation that was a misunderstanding and he was never disciplined again.  Five months later he was awarded the Distinguished Service Cross and Purple Heart.  He concludes by stating that with the exception of the incident in Japan in 1951, his record was sterling and he clearly served without any problems for the remainder of his 1½ years of service. 

3.  The applicant provides a copy of 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'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 the applicant's records were lost or destroyed in that fire.  However, the documents contained in a reconstructed record are sufficient to conduct a fair and impartial review of this case.

3.  The applicant enlisted in the Regular Army in New Orleans, Louisiana on       3 June 1949 for a period of 3 years.  He completed his training as an antiaircraft artillery cannoneer (3603).  He was transferred to Korea in July 1950 and he was assigned to Company F, 35th Infantry Regiment.  He was wounded in action on 16 August 1950 and 21 May 1951 and he departed Korea in August 1951 after serving in six campaigns.

4.  He was promoted to the rank of sergeant on 30 August 1952 and on 
17 September 1952 he was honorably discharged at Fort Bliss, Texas.  He had served 3 years, 3 months and 6 days of active service of which 1 year, 1 month and 8 days were foreign service.  He also had 9 days of lost time.  His DD Form 214 issued at the time of discharge shows that he was awarded the Republic of Korea Presidential Unit Citation, Korean Service Medal with one silver and one bronze service star, Combat Infantryman Badge, Distinguished Service Cross, and the Purple Heart.  His DD Form 214 also reflects the dates of two wounds.

5.  A review of the available records fails to show any evidence of conduct and efficiency ratings or the dates of his 9 days of lost time.

6.  Army Regulation 600-65, 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, and service school efficiency (emphasis in the original) ratings of less than "excellent" entered prior to 3 March 1946, would not be disqualifying.  There must have been no convictions by court-martial.  However, there was no right or entitlement to the medal until the immediate commander made a positive recommendation for its award and until the awarding authority announced the award in general orders.

7.  Army Regulation 600-8-22 (Military Awards) states 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.  

8.  Army Regulation 600-8-22 states the United Nations Service Medal is awarded to members of the Armed Forces of the United States dispatched to Korea or adjacent areas on behalf of the United Nations during the period between 27 June 1950 and 27 July 1954.  Personnel awarded the Korean Service Medal automatically establish eligibility for the United Nations Service Medal.

9.  Army Regulation 600-8-22 states the Republic of Korea War Service Medal (ROKWSM) 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 or on temporary duty for 30 consecutive or 60 non-consecutive days within the territorial limits of Korea or the waters immediately adjacent thereto.

DISCUSSION AND CONCLUSIONS:

1.  The available records clearly show the applicant was wounded (twice) and he was awarded a Purple Heart.  Therefore, it is reasonable to presume that he was awarded two Purple Hearts and his records should reflect the award of the Purple Heart 1OLC instead of just the Purple Heart.

2.  The applicant’s contention that he should be awarded the AGCM under the current criteria has been noted and found to lack merit.  While the sincerity of his claim regarding his service is not in doubt, there simply are no conduct and efficiency ratings in the available records and no explanation of the 9 days of lost time.  Therefore, in the absence of evidence to establish his eligibility for award of the AGCM there appears to be no basis to award it at this time.  

3.  However, the available records do establish that the applicant met the eligibility requirements for awards of the United Nations Service Medal (UNSM), National Defense Service Medal (NDSM), and the ROKWSM.  Accordingly, they should be added to his DD Form at this time.   

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: 

* deleting the entry “Purple Heart” from his DD Form 214
* adding the Purple Heart with 1OLC, UNSM, NDSM, and ROKWSM to his DD Form 214

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 AGCM.

3.  The Board wants the applicant and all others to know that the sacrifices he made in service to the United States during the Korean War are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _   __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)                                         AR20120012567



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ABCMR Record of Proceedings (cont)                                         AR20120012567



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