RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 2 December 2003
         DOCKET NUMBER: AR2003089078


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Richard P. Nelson		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Patrick H. McGann		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that he be awarded the Purple Heart as a result of wounds sustained during the Korean Conflict.

2. The applicant states that he was wounded on 3 January 1952. He contends that he was “emplacing a 30 caliber machine gun in a bunker when there was an explosion” and he was hit in the face and other parts of his body by shrapnel. He further states that he was treated at the 7th Regimental Hospital for three days as a “walking wounded” and that his regimental commander visited him and told him to “write up the incident” and he would award him the Purple Heart. He concludes by saying “being young and not very smart, I never did write up the incident report.”

3. The applicant provides copies of medical records from the 7th Regimental Hospital, a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), copies of morning reports from his unit while in Korea, and a written statement, dated 3 February 2003, describing the incident.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of error that occurred on 31 March 1977. The application submitted in this case is dated 18 March 2003.

2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant’s military personnel records date back to his initial induction on 29 May 1945 and are remarkably complete. The applicant spent a full career in the Army and Army National Guard, accumulating a total of 30 years, 5 months and 15 days of service of which 24 years, 6 months and 4 days were in served on active duty. He retired on 31 March 1977 in pay grade E-6.

4. There are a total of five DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) in the applicant’s military records. These forms, all authenticated in the applicant’s on hand, show that he is entitled to the following awards and decorations:

         a. Army Commendation Medal;

         b. Good Conduct Medal, fourth award;

         c. Combat Infantryman Badge;

         d. World War II Victory Medal;

         e. Korean Service Medal with two bronze service stars;

         f. United Nations Service Medal;

         g. Armed Forces Expeditionary Medal;

         h. National Defense Service Medal with one oak leaf cluster;

         i. Presidential Unit Citation;

         j. Expert Marksmanship Badge with Rifle Bar;

         k. Missileman Badge (basic); and,

         l. Two Overseas Service Bars.

5. Item 29 (Wounds) of the DD Form 214 that documents the applicant’s Korean War service, also authenticated in his own hand, contains the entry “None.”

6. There are no orders in the applicant’s military personnel records that show he was awarded the Purple Heart and the applicant has not provided a copy of orders awarding him the Purple Heart.

7. There are no hospital admission records from the Office of the Surgeon General which show the applicant was admitted, or treated, for wounds resulting from gun shot, shell fragment, or any other type wound normally associated with engagement with hostile forces in a combat environment. The applicant’s name is not on the Korean War casualty list.

8. Medical Department, U.S.A. Form 52b, dated 3 January 1952, indicates that the applicant received multiple fragmentation wounds to various parts of his body. The form further indicates that the wounds were caused as a result of
“.31 cal bullet exploded on cleared.”

9. The applicant’s signed statement states there was an explosion while he was working on a machine gun after his unit had taken a hill from the enemy and was preparing for a counter attack.

10. Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded to any member of an Armed Force who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, has been wounded or killed 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.

11. As a matter of information, on the occasion of the 50th anniversary of the Korean War, the Government of the Republic of Korea issued the Korean War Service Medal to pay tribute to eligible Korean War veterans for their historic endeavors to preserve the freedom of the Republic of Korea and the free world. On 20 August 1999, the Department of Defense approved acceptance and wear of this foreign service award to eligible US veterans of the Korean War, or their surviving next of kin. The medal is provided at no cost to veterans.

12. The Department of Defense assigned responsibility to the Department of the Air Force for distribution of the Korean War Service Medal to eligible veterans or their surviving next of kin. To apply, veterans must submit a copy of their discharge paper (DD Form 214) to the Awards and Decorations Section, Headquarters, Air Force Personnel Center, 550 C Street West, Suite 12, Randolph Air Force Base, Texas 78150-4714. A sample request form is being provided to the applicant. Once the Korean War Service Medal has been authorized by the Department of the Air Force, the applicant may apply to the Army Board for Correction of Military Records to add this foreign award to his DD Form 214.

DISCUSSION AND CONCLUSIONS:

1. The applicant authenticated five separate DD Forms 214, which did not show award of the Purple Heart or wounds sustained in action.

2. There are no medical records that show the applicant was wounded, or treated for wounds, as a result of hostile action.

3. There are no orders awarding the applicant the Purple Heart and he has not provided a copy of orders awarding him the Purple Heart.

4. There is evidence that the applicant was wounded during the Korean conflict. However, without evidence to the contrary, it would appear that the wounds were incurred as a result of an accidental detonation and not as a result of enemy action.

5. Records show the applicant should have discovered the error or injustice now under consideration on 31 March 1977; therefore, the time for the applicant to file a request for correction of any error or injustice expired 3 years from that date. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

___phm_ ____mhm_ ____fne_ DENY APPLICATION

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.




                  _________Fred N. Eichorn_____________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003089078
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031202
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.