IN THE CASE OF:  	  

		BOARD DATE:  10 March 2015	  

		DOCKET NUMBER:  AR20140021538 


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 correction of his DD Form 214 (Report of Separation from the Armed Forces of the United States) as follows; 

* show he was awarded the grade of sergeant first class (temporary) (SFC) (T) on December 1951 vice June 1952
* show award of the Purple Heart for a shrapnel wound in his left hand and elbow from a mortar fire in 1952, and also show marksmanship badges with the Carbine, Grenade (expert), .50 Caliber Machine Gun, and Bazooka

2.  He also requests payment of overseas pay from January 1952 to October 1952 at the rate of $212.00. 

3.  The applicant states:

* the Department of Veterans Affairs informed him that there were no records available on him due to a fire 
* his DD Form 214 indicates his rank as SFC, awarded in June 1952; this was awarded to him in December 1951 and he held this rank when he went on rest and recuperation (R&R) in early May 1952
* he was not paid from January to October 1952 (except for May 1952); he received partial payment when he went on R&R and in the 2 years he received 10 days of leave only; upon leaving the service, there was money owed to him
* he trained loading cargo C119s and C47s and he flew on the C119s, dumping cargo in Korea; he qualified with weapon systems but they are not on his DD Form 214
* there are also other administrative data missing from his medical records, including a birth mark and a burn scar
* he was wounded in combat in April 1952; he was hit with shrapnel in his left arm/elbow from a mortar fire; he still has a piece in his hand to this day 
* he would like to know if the 40th Division received any citations for action in Korea and if he is qualified for it

4.  The applicant provides a letter, dated 25 September 1996, from the U.S. Army Reserve Personnel Center, St. Louis, MO. 

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 to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant's DD Form 214 shows he was inducted into the Army of the United States and entered active duty on 30 October 1950. This form also shows that at the time of separation:

* he held military occupational specialty 1729 (Combat Constructions Specialist)
* his most significant duty assignment (i.e., last duty assignment) was with Headquarters Company, 3rd Battalion, 223rd Infantry Regiment, 40th Division 
4.  His records contain Special Orders Number 73, issued by Headquarters, Pennsylvania Military District, Indiantown Gap, PA on 16 April 1953 ordering his separation and reassignment to the U.S. Army Reserve Control Group (Reinforcement) effective 23 October 1952.

5.  On 22 October 1952, he underwent a separation physical at the U.S. Army Hospital, Indiantown Gap, PA.  His Standard Form 88 (Report of Medical Examination) listed in item 39 (Identifying Body Marks, Scars, Tattoos) the entry "scar, skin, right; birthmark right shoulder blade."  No combat or nonbattle-related injuries or illnesses or treatments, are listed.  

6.  He was honorably separated on 24 October 1952 and he was transferred to the Enlisted Reserve Corps.  His DD Form 214 further shows he completed 1 year, 11 months, and 25 days of active service of which 1 year, 6 months, and 16 days was foreign service.  

7.  His DD Form 214 shows in: 

* Item 3 (Grade-Rate-Rank and Date of Appointment) – SFC (T) 15 June 1952
* Item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) – the Army of Occupation Medal (Japan), Korean Service Medal with one bronze service star, United Nations Service Medal, and Combat Infantryman Badge 
* Item 29 (Wounds Received as a Result of Action with Enemy Forces) – the entry "None"
* Item 38 (Remarks), in pertinent part, Private-2 (Permanent), 28 February 1951

8.  His reconstructed records do not contain orders awarding him the Purple Heart.  Additionally, his name is not shown in the Korean Casualty File.

9.  His reconstructed records do not contain any indication such as a memorandum, disposition form, firing record, or other documentary evidence showing he qualified with any weapon systems and the degree of qualification. 

10.  He was honorably discharged from the U.S. Army Reserve on 3 December 1956 upon completion of his military service obligations. 

11.  On 25 September 1996, he was issued: 


	a.  A memorandum by the U.S. Army Reserve Personnel Center, St. Louis, MO informing him that a DD Form 215 (Correction to DD Form 214) was enclosed and he should attach it to the DD Form 214.  The Purple Heart was previously awarded to him on a DD Form 215, dated 31 October 1995.  

	b.  A DD Form 215 adding award of the Bronze Star Medal.  He had been awarded the Bronze Star Medal by Headquarters, 40th Infantry Division, for meritorious service in Korea from 14 March to 13 September 1952.  

12.  On 22 August 2001, by letter, an official at the U.S. Army Human Resources Command (HRC) notified the applicant's Member of Congress of the criteria for award of the Purple Hear and stated a review of the historical records for the Korea War era for the 223rd Infantry Regiment and 40th Infantry Division did not yield any general orders awarding him the Purple Heart.  However, verification may be possible by conducting a review of the Unit Morning Reports and Surgeon General Hospital Admission Listing for the period in question.  In order to obtain these reports, he could request such reports from the National Personnel Records Center, St. Louis.   If documentation could be provided to substantiate his award of the Purple Heart, he could request a determination of his case.  Additionally, weapons qualification badges could not be authorized without documentation provided to show he achieved the level of qualification being claimed for each weapon.  

13.  On 24 April 2002, by letter, an official at HRC again notified the applicant's Member of Congress of the criteria for award of the Purple Heart and stated the letter, dated 25 September 1996, from the U.S. Army Reserve Center, St. Louis, MO, indicating he was previously awarded the Purple Heart is noted.  HRC recommends he correspond with the National Personnel Records Center for a review of his service records for any documentation related to the Purple Heart.

14.  On 14 March 2003, by letter, to the applicant's member of Congress, an official at the HRC Military Awards Branch stated the letter, dated 25 September 1996, from the U.S. Army Reserve Center, St. Louis, MO, indicating he was previously awarded the Purple Heart is noted.  However, when the ABCMR was contacted, no documentation could be found indicating the award of the Purple Heart was authorized.  Additionally, the Military Awards Branch reviewed the applicant's service record but found this record does not contain a DD Form 215, dated 31 October 1995, or permanent orders authorizing the Purple Heart.  There was no documentation to show the applicant was wounded or treated for injuries as a result of enemy action.  Without permanent orders authorizing the award of the Purple Heart or medical documentation showing treatment as a battle casualty, an award of the Purple Heart could not be authorized. 

15.  War Department Technical Manual 12-236 (Preparation of Separation Forms) and Army Regulation 635-5 (Separation Documents) prescribed the policies and procedures for the preparation of separation forms.  The purpose of the separation document is to provide the veteran with a separation certificate and a military or enlisted record and report of separation.  The DD Form 214 is prepared for all enlisted personnel separated from the service due to discharge, release from active duty or transfer to a Reserve Component, or retired.  Item 3 of the DD Form 214 shows the grade (temporary or permanent) and date of rank held at the time of separation.

16.  Army Regulation 600-8-22 (Military Awards):  

	a.  The Purple Heart is awarded for a wound sustained 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, and the medical treatment must have been made a matter of official record.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:  injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and/or concussion injuries caused as a result of enemy generated explosions.

	b.  Sets forth requirements for award of basic marksmanship qualification badges.  The qualification badge is awarded to indicate the degree – Expert, Sharpshooter, and Marksman -- in which an individual has qualified in a prescribed record course.  An appropriate bar is furnished to denote each weapon with which the individual has qualified.

		(1)  Examples:  Expert Marksmanship Qualification Badge with Rifle Bar or Sharpshooter Marksmanship Qualification Badge with Pistol Bar or Marksman Marksmanship Qualification Badge with Automatic Rifle Bar.

		(2)  Award of marksmanship badges is not permanent.  An award for previous marksmanship weapons qualification is revoked automatically whenever an individual, upon completion of firing a record course for which the previous award was made, has not attained the same qualification. In the event a badge is authorized for firing a limited or sub-caliber course, it is automatically revoked if a record service course is subsequently fired.

		(3)  Department of the Army Pamphlet 350-38 (Standards in Training Commission) provides commanders with the training strategies for individual, crew, and collective weapons training.  The pamphlet is structured by unit type (e.g., Armor, Infantry, Artillery, Military Police, etc.) instead of by weapon type; however, the basic requirements call for annual (or sooner) qualification with individual weapons.  This means, in effect, the most recent qualification score with a particular weapon denotes the degree of marksmanship badge the Soldier is eligible to wear.

17.  War Department Technical Manual 12-236 (Preparation of Separation Forms) provides that the appropriate separation form will be prepared for all enlisted personnel separated from the service by reason of discharge, retirement, or release from active duty or transfer to a Reserve Component.  This manual states that item 3 shows the grade held by the enlisted member at the time of separation and item 38 shows the highest grade held by the enlisted member during current period of active duty.  Additionally, item 55 is used for completion of entries specified in War Department Directives.  

18.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) shows the 40th Infantry Division was cited for various unit awards and decorations awarded to: Headquarters and Headquarters Company; Headquarters, Special Troop Battalion; Headquarters, Medical Detachment; Headquarters and Headquarters Battery, Division Artillery; Medical Detachment, Division Artillery; Military Police Platoon; and Division Band. 

DISCUSSION AND CONCLUSIONS:

1.  With respect to his rank at the time of separation: 

	a.  The applicant served on active duty from 30 October 1950 to 24 October 1952.  At the time of his separation, he held the temporary rank of SFC, effective 15 June 1952, and the permanent rank of Private-2, effective 28 February 1951.  The DD Form 214 is a record of active service and reflects the rank and date of rank held by the applicant at the time of separation from active duty.

	b.  His records do not contain and he does not provide promotion, advancement, or appointment orders to confirm the exact date he was appointed to the temporary rank of SFC.  In the absence of the promotion/appointment instrument (orders) or evidence to the contrary, it must be presumed the date of rank listed on his DD Form 214 is correct.  There is insufficient evidence to change it. 

2.  With respect to the Purple Heart: 

	a.  The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

	b.  The letter issued on 25 September 1996 informing him that the Purple Heart was previously issued him on a DD Form 215, dated 31 October 1995, is noted.  Unfortunately, neither the DD Form 215 nor the orders awarding him this award could be found.  

	c.  Notwithstanding his sincerity, there is no evidence in his record that shows he was wounded or injured as a result of hostile action or treated for such wounds.  Regrettably, absent evidence which conclusively shows he sustained wounds or injuries as a result of hostile action, that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is insufficient basis for awarding the Purple Heart to the applicant in this case.

3.  With respect to the marksmanship badges, there is no evidence in his reconstructed records and he provides none, such as a memorandum, disposition form, firing record, or other documentary evidence showing he qualified with any weapon systems and the degree of qualification.  Without such evidence, there is insufficient evidence to award him any marksmanship badges. 

4.  With respect to the 40th Infantry Division unit citations, the division was awarded multiple unit citations; however, the applicant was not assigned to the 40th Division; he was assigned to the Headquarters Company, 3rd Battalion, 223rd Infantry Regiment.  

5.  With respect to pay and allowances the ABCMR corrects military records; it is not a paymaster.  The applicant did not provide enough information or documentary evidence for the Board to understand the nature of his pay issue much less make a determination concerning back pay more than 60 years earlier.  Since the Board is not an investigative body and since there is a presumption that what the Army did in his case was correct, the Board cannot take action on the pay issues of his application. 







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 for correction of the records of the individual concerned.



      _______ _   _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)                                         AR20140021538





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ABCMR Record of Proceedings (cont)                                         AR20140021538



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