RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          15 March 2005
      DOCKET NUMBER:  AR20040003045


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Jonathon K. Rost              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

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

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, award of the Purple Heart (PH).

2.  The applicant states, in effect, that he was injured when the air
brakes of a 155 Howitzer went out and it rolled backward down a hill and
struck him.  He claims this was an injury received during combat and he
believes he should receive the PH for this incident.

3.  The applicant provides a third-party statement in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 1 August 1953.  The application submitted in this case is
dated
11 June 2004.

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 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 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. This case is being
considered using reconstructed records that primarily exist of the
applicant’s separation document (DD Form 214).

4.  The applicant’s DD Form 214 shows that he was inducted into the Army
and entered active duty on 13 October 1951.  This document further shows
that he served overseas for 1 year, 2 months and 19 days and that he earned
the Korean Service Medal with 3 bronze service stars and the United Nations
Service Medal during his active duty tenure.

5.  Item 29 (Wounds Received as a Result of Action with Enemy Forces)
contains the entry “None” and the applicant authenticated the DD Form 214
with his signature in Item 48 (Signature of Person Being Separated).

6.  The applicant provides a third-party statement from a fellow member of
his organization in Korea.  This individual claims that he was with the
applicant when he was injured as a result of an accident in Korea.  He
states that while in the process of setting up the 155 Howitzer, the
applicant was hit in the mid section when the brake system failed.  He
states the applicant complained of pain and a few days later he complained
that his bladder was hurting when he tried to urinate.  He confirms he and
the applicant were in the same section and he was also a driver and
ammunition handler.

7.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and
criteria concerning individual military awards.  Paragraph 2-8 contains the
regulatory guidance pertaining to awarding the PH.  It states, in pertinent
part, that in order to award a PH there must be evidence that a member was
wounded or injured as a result of enemy action.  The wound or injury for
which the PH is being awarded must have required treatment by a medical
officer, this treatment must be supported by medical treatment records that
were made a matter of official record.

8.  Paragraph 2-10 of the awards regulation contains guidance on award of
the National Defense Service Medal.  It states, in pertinent part, that it
is authorized for honorable active service for any period between 27 June
1950 and 27 July 1954.

9.  On 20 August 1999, the Department of Defense approved acceptance and
wear of the Korean War Service Medal (KWSM) to eligible US veterans of the
Korean War, or their surviving next of kin.  Responsibility for
distribution of the KWSM was given to the Department of the Air Force.  In
order to apply, the applicant should submit a copy of his 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.  Once the Korean War Service Medal has been authorized by the
Department of the Air Force, the applicant may apply to this Board to add
this foreign award to his DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH and the supporting third-
party statement he submitted were carefully considered.  However, by
regulation, in order to support award of the PH, there must be evidence a
member was wounded/injured in action, was treated for the wound/injury by
military medical personnel and a record of this medical treatment must have
been made a matter of official record.

2.  The veracity of applicant’s claim that he was injured while serving in
Korea and of the supporting third-party statement are not in question.
However, absent any evidence of record to corroborate the information
contained in the third-party statement and/or to confirm the applicant’s
injury was the direct result of or caused by enemy action, the regulatory
burden of proof necessary to support award of the PH has not been satisfied
in this case.  Therefore, the applicant’s request for the PH must be denied
in the interest of all those who served during the Korean War and who faced
similar circumstances.

3.  Further, the DD Form 214 issued to the applicant upon his separation on

1 August 1953 did not include the PH in the list of authorized awards.  The
applicant authenticated this DD Form 214 with his signature, thereby
verifying that the information it contained, to include the list of awards,
was correct at the time the document was prepared and issued.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 August 1953.  Therefore, the time
for him to file request for correction of any error or injustice expired on
31 July 1956.  However, he failed to 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
timely file in this case.

5.  The record does show that the applicant is entitled to the National
Defense Service Medal based on his active duty service.  The omission of
this award from his separation document is an administrative matter that
does not require Board action to correct.  Therefore, administrative
correction of the applicant’s records will be accomplished by the Case
Management Support Division (CMSD),
St. Louis, Missouri, as outlined by the Board in paragraph 3 of the
BOARD DETERMINATION/RECOMMENDATION section below.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RJW_  ___JTM _  ___JKR  _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would 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.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.

3.  The Board determined that administrative error in the records of the
individual should be corrected.  Therefore, the Board requests that the
CMSD-St. Louis administratively correct the records of the individual
concerned by adding the National Defense Service Medal to the list of
awards contained in his DD Form 214; and by providing him a corrected
separation document that includes this award.




            ____Raymond J. Wagner____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040003045                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/15                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1953/08/01                              |
|DISCHARGE AUTHORITY     |SR 615-363-5                            |
|DISCHARGE REASON        |Rel to USAR                             |
|BOARD DECISION          |DENY w Admin Note                       |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  61   |107.0015                                |
|2.  46                  |107.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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