RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 August 2005
      DOCKET NUMBER:  AR20040008284


      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             |
|     |Ms. Prevolia Harper               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 correction of his records to show award of the
Purple Heart.

2.  The applicant states that he was wounded in Korea and his commanding
officer recommended him for the Purple Heart.  He also states that he never
received the Purple Heart and it is affecting his disability rating from
the Department of Veterans Affairs (DVA).

3.  The applicant provides a statement from his former commander in support
of his application

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an alleged error which
occurred on 29 June 1952. The application submitted in this case is dated
28 September 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 limitations 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,
historical documents were obtained from the Office of the Adjutant General
of Oklahoma National Guard.

4. Historical records from the Oklahoma National Guard show that the
applicant's Army National Guard unit was ordered to active duty on 1
September 1950.  He served with the Heavy Mortar Company, 179th Regiment,
45th Division.





5.  The applicant was honorably discharged from active service on 29 June
1952 in the rank of corporal. His DD Form 214 shows that he completed 1
year,
9 months, and 29 days of active service.

6. The applicant's DD Form 214 shows the Korean Service Medal with one
bronze campaign star, the Army Occupation Medal (Japan), and the United
Nations Service Medal, and the Combat Infantryman Badge as authorized
awards.

7.  Item 29 (Wounds Received as a Result of Action with Enemy) on his DD
Form 214 shows the entry "NONE."

8. The applicant's name is not listed on the Korean Casualty Roster.

9.  A Report of Medical Examination conducted prior to the applicant's
release from active duty shows that he had an abnormality of the
heart/right lower posterior chest. The exact diagnosis annotated on the
document cannot be determined due to the condition of the records. This
document makes no reference to wounds sustained in combat or show wounds or
injuries consistent with those received as a result of hostile action.

10.  A search of historical records for the Heavy Mortar Company, 179th
Infantry, 45th Infantry Division was conducted at the National Archives in
College Park, Maryland.  This search failed to reveal any documents which
would show the applicant was entitled to the Purple Heart.

11.  The applicant submitted a statement from the company commander of the
Heavy Mortar Company, 179th Infantry Regiment, 45th Division. The commander
stated that the enemy fired artillery and mortar rounds into a mess tent in
which the applicant was hit in the right knee.

12.  The commander further stated that he forwarded the applicant's name
for award of the Purple Heart. He explained that a short time later, they
were shipped back to the United States and discharged.

13. Army Regulation 600-8-22 provides, in pertinent part, that the Purple
Heart is awarded for a wound sustained 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.

14.  Army Regulation 600-8-22 provides, in pertinent part, that the
National Defense Service Medal is awarded for honorable active service for
any period between 27 July 1950 through 27 July 1954, 1 January 1961
through 14 August 1974, 2 August 1990 through 30 November 1995 and 11
September 2001 to a date to be determined.

15.  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. 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.

16. The applicant is advised that to apply for the Korean War Service
Medal, he 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.  A sample request form is
provided. 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 contends that he should be awarded the Purple Heart.

2.  There are no orders or military records which show that the applicant
was awarded the Purple Heart or was wounded or treated for wounds as a
result of hostile action.

3.  Historical records from the Oklahoma National Guard which include the
applicant's medical examination upon his release from active duty, only
show that the applicant had a heart abnormality.  Therefore this document
is insufficient evidence upon which to base award of the Purple Heart.




4.   While the veracity of the former commander’s claim is not in doubt,
there is no evidence in the available records to confirm his claim that the
applicant’s injury was the result of enemy action or that the request was
ever processed.
By regulation, in order to award the Purple Heart it is necessary to
establish that a Soldier was wounded as a result of enemy action, that the
wound required treatment by a medical officer, and that the record of
medical treatment was made a matter of official record.  Therefore, the
witness statement alone is insufficient evidence upon which to base award
of the Purple Heart.

5.  The applicant served a qualifying period of service for the National
Defense Service Medal.  Therefore, his records should be corrected to show
this award.

6.  In the absence of records prepared at the time of the applicant's
service which show that he was wounded or injured as a result of hostile
action, there is insufficient evidence upon which to base award of the
Purple Heart in this case.

7. Records show the applicant should have discovered the alleged error or
injustice now under consideration on 29 June 1952; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
28 June 1955.  Although the applicant did not file within the ABCMR's
statute of limitations, it is appropriate to waive failure to timely file
based on the fact there is no statute of limitations on requests for award
of the Purple Heart.

8.  Evidence shows that the applicant’s records contain administrative
error which does not require action by the Board.  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

__JRM __  __WDP _  __RLD __  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that it is in interest of justice to excuse
failure to timely file.

2.  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.

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 to show the National Defense Service Medal.





                                    __Mr. William D. Powers__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008284                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050802                                |
|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.                      |                                        |


-----------------------
[pic]