BOARD DATE: 5 September 2017 DOCKET NUMBER: AR20170012136 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ __x______ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 5 September 2017 DOCKET NUMBER: AR20170012136 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 to amend the decision of the ABCMR set forth in Docket Number AR20150013619, dated 29 September 2016. ___________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. BOARD DATE: 5 September 2017 DOCKET NUMBER: AR20170012136 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 the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20150013619 on 29 September 2016. In effect, he requests award of the Ranger Tab for his service during the Korean Conflict. 2. The applicant defers to counsel for further statement and submission of evidence. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect, reconsideration of the previous ABCMR decision as promulgated in Docket Number AR20150013619 on 29 September 2016. Specifically, he requests the Board grant relief by awarding the applicant the Ranger Tab for his service during the Korean Conflict. 2. Counsel states, in effect: a. The applicant is a veteran of the Korean Conflict who is now in his eighties and who requires immediate relief. b. Upon reconsideration, he was denied his request for a Ranger Tab for his service during the Korean Conflict. His records were destroyed in the 1973 fire (at the National Personnel Records Center (NPRC) in St. Louis, MO). His proof that the applicant is entitled to a Ranger Tab comes principally from five affidavits provided by Korean Conflict veterans who served with the applicant. The ABCMR totally ignored the affidavits and gave them no weight. c. The ABCMR said, "Unlike the applicant, the two Soldiers who were awarded the Ranger Tab via their petitions to this Board clearly demonstrated their assignment to the 8th Army Ranger Company." The five affidavits served to prove that the applicant also served with the 8th Army Ranger Company. It is plain error to ignore these affidavits (see Haselwander v. McHugh, 774 F.3d, 990 (D.C. Cir 2014)). d. The Board recently granted relief in a Purple Heart case involving a combat veteran who was represented by the firm that is currently representing the applicant. The case was remanded to the Board from the District Court because the Board failed to follow Haselwander v. McHugh (see Docket Number AR20150002079). Counsel contends the same result should be obtained in this case. Forcing him to court with its attendant delays and costs is fundamentally unfair. 3. Counsel provides the Record of Proceedings in ABCMR Docket Number AR20150013619, dated 29 September 2016. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records and evidence that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20150013619 on 29 September 2016. 2. In the previous application, counsel contended the applicant was authorized the Ranger Tab for being assigned to the 8th Army Ranger Company from on or about 25 October 1950 through on or about 30 November 1950. 3. Counsel provides a new argument that was not previously considered by the Board. In essence, counsel asks the Board to reevaluate the affidavits attesting to the applicant's assignment to the 8th Army Ranger Company during the period in question in light of Haselwander v. McHugh. 4. The previous Record of Proceedings noted that: a. The applicant's military records are not available to the Board for review. A fire destroyed approximately 18 million service members' records at the NPRC in 1973. It is believed that the applicant's 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. b. The applicant's DD Form 214 shows he enlisted in the U.S. Army Reserve (USAR) and served in the inactive USAR from 23 December 1949 to 25 September 1950. He was ordered to active duty on 26 September 1950 at Forks Village, MA. c. The applicant's DD Form 214 shows at the time of his separation he held military occupational specialty 4745 (Automatic Rifleman) and was assigned to Company K, 35th Infantry Regiment. d. The applicant was honorably separated on 24 July 1951 and transferred to the USAR for completion of his required service. He completed 1 year, 7 months and 2 days of active service, of which 8 months and 6 days were foreign service. His DD Form 214 shows in: (1) Item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized), he was awarded/authorized the: * Purple Heart, under the authority of General Orders Number 6, issued by Headquarters, 35th Infantry Regiment on 21 March 1951 * Korean Service Medal (KSM) with two bronze service stars * Combat Infantry Badge (CIB), under the authority of Special Orders Number 1, issued by Headquarters, 35th Infantry Regiment on 1 January 1951 (2) Item 29 (Wounds Received as a result of Action with Enemy Forces), he sustained shrapnel wounds to his right foot and right index finger on 11 March 1951. e. On 3 August 2004, following his petition to this Board for additional awards, the Board, in ABCMR Docket Number AR2004103175, granted him the following record corrections: * corrected the date of his first injury from 21 March 1951 to 7 March 1951 and added a second injury on 25 May 1951 * awarded him a second award of the Purple Heart for wounds received in action on 25 May 1951 f. On 30 September 2004, following a supplemental review of his morning reports and a previous decision by the U.S. Army Human Resources Command (HRC), the Board, in ABCMR Docket Number AR20040007425, granted him relief and he was issued a DD Form 215 (Correction of DD Form 214) that reflected the above corrections, added a third service star to his KSM, and corrected the date of his second injury from 25 May 1951 to 21 May 1951. g. On 3 August 2007, as a result of his petition to HRC, he was issued a DD Form 215 that added the Bronze Star Medal with "V" Device and the Republic of Korea War Service Medal. h. On 15 August 2012, he submitted a request to the Board to correct his records to show he was assigned to Company B, 35th Infantry Regiment, 25th Infantry Division. A staff member advised him on 29 November 2012, in ABCMR Docket Number AR20120016917, that the ABCMR was not the custodian of his records and that he should contact the NPRC. i. On 22 July 2014, following his petition to this Board for additional awards and/or corrections, the Board, in ABCMR Docket Number AR20130020557: * denied his request for the Ranger Tab * denied his request for additional bronze service stars * denied a change to his most significant duty assignment from Company K, 35th Infantry Regiment, to 8th Army Ranger Company, and Company B, 35th Infantry Regiment, 25th Infantry Division j. In a previous submission, five affidavits were reviewed. In each affidavit, the author certified that he was a member of the 8213th Ranger Company, 8th Army, during the Korean Conflict, which was attached to the 25th Infantry Division during the period in question. Each author certified that the applicant was a member of the 8th Army Ranger Company during the period 6 November 1950 through 1 December 1950. k. A previous Board compared the applicant's service to that of another applicant, a commissioned officer who petitioned the ABCMR for award of the CIB for service during the Korean Conflict with the 8th Army Ranger Company, from 25 August 1950 to 1 March 1951. The Board granted the officer relief in ABCMR Docket Number AR200308946, wherein it determined there was sufficient evidence to support awarding that applicant the CIB and Ranger Tab. Most noticeably, that applicant's DD Form 214 shows he was a platoon leader in the 8th Army Ranger Company (Korea). 5. The applicant's exact dates of service in the Republic of Korea are unknown. Further, his record is void of evidence that shows the unit to which he was assigned during the period 26 September 1950 through 30 November 1950. There is no evidence he was assigned to the 8213th Ranger Company, 8th Army, also known as the 8th Army Ranger Company, at any time during his period of active service or foreign service in the Republic of Korea. a. A morning report from Company B, 35th Infantry Regiment, dated 1 December 1950, shows the applicant was reported as a personnel gain, assigned to the unit by way of the Replacement Company, 25th Infantry Division. b. A morning report from Company B, 35th Infantry Regiment, dated 20 December 1950, shows the applicant was reported as a personnel loss, reassigned to Company K, 35th Infantry Regiment. 6. The applicant's DD Form 214 shows that he was assigned to Company K, 35th Infantry Regiment on 24 July 1951, the date of his separation. 7. Counsel provides five signed and notarized affidavits, each containing the identical statement: "This is to certify that I as a member of the 8213 Ranger [Company] 8th Army serving during the Korean War, attached to the 25th [Infantry] Division during the period indicated and certify that [the applicant] was a member of the unit from November 6, to December 1, 1950." REFERENCES: 1. Army Regulation 600-8-22 (Military Awards) provides Department of the Army policy, criteria, and administrative instructions concerning individual military decorations, service medals and ribbons, combat and special skill badges, unit decorations, and similar devices awarded in recognition of accomplishments. This regulation provides that the Ranger Tab is authorized for award to U.S. military and civilian personnel and foreign military personnel who: * successfully complete a Ranger course conducted by the U.S. Army Infantry School * were awarded the CIB while serving during World War II as a member of a Ranger Battalion (1st through 6th inclusive) or in the 5307th Composite Unit (Provisional) and 475th Infantry Regiment (Merrill’s Marauders) * successfully complete a Ranger course conducted by the Ranger Training Command at Fort Benning, GA 2. The Ranger Tab was further authorized to any person who was awarded the CIB while serving during the Korean Conflict with the 8th Army Ranger Company during the period 11 October 1950 to 27 March 1951. 3. Army Regulation 607-70 (badges), in effect at the time, provided that the CIB was authorized for award to infantry officers or enlisted men, or warrant officers with infantry military occupational specialty who, subsequent to 6 December 1941, had satisfactorily performed duty while assigned or attached as a member of an infantry unit of regimental or smaller sized ruing any period such unit was engaged in active ground combat. Awards could be made to assigned members of ranger infantry companies assigned or attached to tactical infantry organizations. Battle participation credit alone was not sufficient; the unit must have been in active ground combat with the enemy during the period. 4. The 8th Army Ranger Company, 8213th Army Unit, was formally organized on 25 August 1950. The company arrived in Korea on 2 September 1950 to begin their combat training. a. They were attached to IX Corps on 10 October 1950 and further attached to the 25th Infantry Division on 14 October 1950 for use in anti-guerrilla operations. b. The 8th Ranger Company joined elements of 2nd Battalion, 35th Infantry Regiment, to form Task Force Johnson on 10 November 1950. The task force participated in several instances of contact with enemy forces. c. On or about 23 November 1950, Task Force Dolvin was created consisting of the following units: 89th Medium Tank Battalion; 8th Army Ranger Company; Company E, 27th Infantry Regiment; Company B, 35th Infantry Regiment; 25th Reconnaissance Company; and Company C, 65th Combat Engineer Battalion. d. One of the most notable battles of the 8th Army Ranger Company occurred on Hill 205 on or about 25 to 26 November 1950. Before the battle, the 8th Army Ranger Company numbered 3 officers and 60 enlisted men. After reporting casualties resulting from fighting with enemy forces on Hill 205, the 8th Army Ranger Company reported having 1 officer and 21 enlisted men present for duty. e. The 25th Infantry Division relieved the 8th Army Ranger Company from their security mission on 9 December 1950 for refitting. After regaining their personnel strength, they continued to participate in missions against enemy forces until the unit was discontinued on 28 March 1951. 5. The U.S. Court of Appeals for the District of Columbia Circuit case of Haselwander v. McHugh pertains to a veteran of the U.S. Army who served during the Vietnam War and was honorably discharged in 1974. During his tour of duty in Vietnam, he claimed he was wounded and knocked unconscious when an enemy rocket exploded near his sleeping quarters. He was picked up by medical personnel and treated for shrapnel wounds. He was then called back to duty as soon as he had been bandaged, so those who attended to his wounds never had a chance to fill out any medical paperwork for him. As a result, his Army records did not show that he was wounded in hostile action. a. In March 2007, he filed an application with the ABCMR to correct his military records so that he could receive the Purple Heart. In his initial application to the Board, he provided references who could corroborate his story, along with photographs taken at the time when he was wounded showing him with bandages on his face and shoulder and wearing a dispensary-issued scrub top. The Board rejected the application, stating that he had failed to show that he had been "treated for a wound that was sustained as the result of enemy action." b. He then filed a petition for reconsideration that included a letter from another veteran who was also wounded and treated at the same time and official reports from his brigade and platoon units that detailed the events on the day he was wounded. The Board denied his application for reconsideration. c. He sought review in the District Court. On cross-motions for summary judgment, the District Court granted the Secretary of the Army motion and denied his motion. He then appealed and pointed out that the undisputed evidence in the record showed that he was injured in an enemy attack and that he was treated for his wounds by members of the Army medical staff. On the basis of this evidence, he claimed his medical records should be corrected and he should be awarded the Purple Heart. The Secretary of the Army response rested on two contentions: first, that the veteran waived his request for correction of his medical records because he "did not identify medical records to be changed, how those documents should be changed, nor indicated what treatment the documents should say he received or what medical officer treated him," and second, the Secretary of the Army argued that the Board’s decision that he is not entitled to the Purple Heart should be upheld because he has no medical records of his injury and treatment. d. The Court of Appeals stated that: "The Secretary’s waiver argument is a red herring. This claim was never raised with the District Court, so it has been forfeited. Furthermore, the Board’s decision rejecting the petition for reconsideration did not rest on any finding that [the Veteran] had asked for the wrong record to be corrected or that he failed to raise a request for correction to his medical records. In sum, the Secretary’s waiver argument is groundless." e. The Court of Appeals found that "the Board’s decision defies reason and is devoid of any evidentiary support. We therefore vacate the decision because it is arbitrary and capricious. The Board held that the photographs submitted by [the Veteran], without more, were insufficient to support his claim. [The Veteran's] claim, however, does not rest exclusively on photographs. Indeed, the Board specifically found that '[t]he letters of support submitted with [the Veteran's] request for reconsideration clearly state that the applicant was wounded in action.' And the Board did not otherwise discredit any of the evidence submitted by [the Veteran]. Thus, it is apparent that the sole basis for the Board’s rejection of [the Veteran's] claim is its finding that '[t]here is no available medical record to corroborate the photographs.'" f. The Court of Appeals concluded "The Board misapprehends its powers and duties as a record correction body when it denies an application because the applicant’s records are incomplete. The void in [the Veteran's] medical records is the very error that he seeks to have corrected so that he can secure the Purple Heart to which he is entitled. The Board’s reasoning in this case is utterly illogical, and patently unfair; therefore, the Board’s judgment against [the Veteran] is 'unworthy of any deference.' [The Veteran's] requests for a correction of his military record and an award of the Purple Heart are supported by uncontested, creditable evidence. We therefore reverse the judgment of the District Court and vacate the decision of the Board. The case will be remanded to the District Court with instructions to remand the case to the ABCMR for a prompt disposition of this matter consistent with this opinion." DISCUSSION: 1. Counsel contends the applicant is authorized the Ranger Tab for his service in the Korean War while assigned to the 8th Army Ranger Company from 6 November 1950 through 1 December 1950. Counsel also contends the five affidavits serve to prove the applicant was assigned to the 8th Army Ranger Company during the period in question, and should be viewed as legitimate in light of Haselwander v. McHugh. 2. The applicant's complete official military personnel file was destroyed in the 1973 NPRC fire. Therefore, it is difficult to substantiate much of the relevant information pertaining to his service in the Republic of Korea. 3. As a special provision, any person serving in the Korean War who was awarded the CIB while assigned to the 8th Army Ranger Company during the period 11 October 1950 to 27 March 1951, was also authorized the Ranger Tab. There is no evidence the applicant was assigned to the 8th Army Ranger Company, either during this period or any other period. 4. The applicant's record clearly shows he was ordered to active duty on 26 September 1950. A significant question exists as to whether or not the applicant was assigned to the 8th Army Ranger Company, from either his initial claim of 25 October 1950, or the now alleged period of 6 November 1950 through 1 December 1950. 5. The third-party affidavits he provides attest to his assignment with the 8th Army Ranger Company during the period 6 November through 1 December 1950. These statements are brief and identical in language; they do not provide much detail aside from each author's recollection that the applicant was a member of the 8th Army Ranger Company. 6. Except for the morning report showing he was assigned to the Replacement Company, 25th Infantry Division, prior to being assigned to Company B, 35th Infantry Regiment on 1 December 1950, there is no evidence that confirms the unit he was assigned to during the period 26 September 1950 through 30 November 1950. 7. The morning report of 1 December 1950 clearly shows the applicant was assigned to Company B, 35th Infantry Regiment on 1 December 1950. The morning report of 20 December 1950 clearly shows the applicant was assigned to Company K, 35th Infantry Regiment, on 20 December 1950. 8. The applicant was awarded the CIB on 1 January 1951, while he was serving as a member of Company K, 35th Infantry Regiment. There is no evidence he was awarded the CIB for actions against the enemy that occurred prior to his assignment to Company K, 35th Infantry Regiment. However, the CIB orders were not provided for review; therefore, there is no way to determine the exact date of the action(s) for which he was awarded the CIB, or to what unit he was assigned when he met the criteria for the award. 9. Assuming, without conceding, that the applicant actually served with the 8th Army Ranger Company during the period in question, his application would still fall significantly short of the evidence proffered in the Haselwander case. In that case, Mr. Haselwander’s presence in Vietnam was never an issue as his military records amply demonstrated his service there. In support of his application for the Purple Heart, Mr. Haselwander submitted a photo of himself in Vietnam wearing a dispensary-issued scrub top with medical bandages “on his chin, cheek and shoulder.” (See Haselwander decision, pp. 3, 9.) He also submitted a witness statement that provided a first-hand eyewitness account of the enemy action that caused Mr. Haselwander’s injuries. The eyewitness account substantiated that the witness: a) was physically present when an enemy rocket exploded on Mr. Haselwander’s tent; b) saw that Mr. Haselwander was wounded in the face and neck; c) was himself injured in the attack, for which he (the witness) received a Purple Heart; d) had first-hand knowledge that Mr. Haselwander’s facial wounds received treatment from a specific American medical unit (“the 199th Clinic”) in Vietnam. (See Haselwander decision, p. 10.). Thus, Mr. Haselwander’s array of evidence included indisputable documentary evidence (his service record) that he served in Vietnam; visual evidence of his wounds and medical treatment (the photograph); staff journal reports verifying Mr. Haselwander’s unit suffered casualties from rocket fire the day he was injured; and a first-hand, eyewitness account detailing how Mr. Haselwander was injured and the medical unit where his wounds were treated. (See Haselwander decision, pp. 9-10.) 10. The applicant’s evidence suffers in comparison to Mr. Haselwander’s. The applicant's service record is devoid of any indication he was assigned to the 8th Army Ranger Company. Moreover, the applicant has not submitted any photos, letters home, envelopes with overseas Army Post Office (APO) postmarks, or any other contemporaneous indicators that he was assigned to the 8th Army Ranger Company. The sole category of evidence on the applicant’s behalf is after-the-fact affidavits from veterans asserting he served with them in the 8th Army Ranger Company. The applicant's service record contains no evidence he served with the unit. All of the applicant’s affidavits were created not less than 62 years after the fact. Even then, the affidavits only assert that the applicant was assigned to the 8th Army Ranger Company from 6 November 1950 to 1 December 1950 and provide no first-hand accounts about how they know he was assigned to the company or how he participated in actions against enemy forces making him eligible for a CIB (which would further authorize the Ranger Tab) during that time. 11. Further challenging in the applicant's case is the absence of an entry listing the 8th Army Ranger Company as his previous assignment on the 1 December 1950 morning report that assigned him to Company B, 35th Infantry Regiment. If the morning report is used as a substantiating source document, then one would have to question why there is no record of his departure from the 8th Army Ranger Company on 30 November 1950 and his reassignment to the Replacement Company. 12. The history of the 8th Army Ranger Company includes their attachment to 25th Infantry Division task forces that also consisted of Army elements from the 35th Infantry Regiment. Although Army units employed forces together under the task force to complete missions, each unit maintained their identity. It is possible that while he was assigned to the 35th Infantry Regiment on 1 December 1950, he was under the operational control of a task force, requiring him participate in missions alongside members of the 8th Army Ranger Company. 13. The applicant’s case is not comparable to Mr. Haselwander’s Purple Heart case. One element of proof for receiving the Purple Heart is that "the records of medical treatment … have been made a matter of official Army records." The D.C. Circuit’s opinion in the Haselwander case focused on the ABCMR’s reluctance to amend Mr. Haselwander’s military records despite evidence that he received medical treatment for an injury resulting from North Vietnamese enemy fire. The ABCMR seemingly felt it was improper to construct the requisite medical record when no such record, in any form, had ever actually existed. The D.C. Circuit admonished the ABCMR that its reluctance in this regard was misplaced and opined that [t]he [ABCMR] misapprehends its powers and duties as a record correction body when it denies an application because the applicant’s records are incomplete. The void in Haselwander’s medical records is the very error that he seeks to have corrected so that he can secure the Purple Heart to which he is entitled. (Haselwander decision, p. 5.) Thus, the Haselwander decision instructs corrections boards to assume the existence of “records of medical treatment” within a Soldier’s “official records” when the evidence is clear that the Soldier in fact was injured in combat and received medical treatment. Such an assumption is warranted to avoid the injustice of denying a Purple Heart to a Soldier clearly entitled to the award. But such is not the case in the applicant’s situation. 14. Unlike the Haselwander case, the evidence that the applicant was assigned to the 8th Army Ranger Company before being sent to the Replacement Company is faint at best. Consequently, the two cases are not analogous. As a result, the holding in the Haselwander case does not obligate this Board to award the Ranger Tab to the applicant. 15. Regulatory guidance in effect at his time of service provided that any person awarded a CIB while assigned to the 8th Army Ranger Company was also authorized the Ranger Tab. The applicant’s military records do not show that he was awarded the CIB while serving with the 8th Army Ranger Company. The affidavits do not comment on whether or not he was awarded the CIB during the period of service in question. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160014599 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170012136 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2