RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 September 2005
      DOCKET NUMBER:  AR20040009590


      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. Klaus P. Schumann             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ronald E. Blakely             |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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) and
that his military records are corrected to show this award.

2.  The applicant states, in effect, that he should have received the PH
when he was treated at the 21st Evacuation Hospital on 28 September 1952,
for a shell fragment wound that he sustained to his right thigh.  He
further states that he continues to have pain and numbness and that based
on a Department of Veterans Affairs (VA) rating decision, dated 2 September
2004, he is entitled to the PH.

3.  The applicant provides, in support of his application, a copy of his
separation document (DD Form 214), effective 16 February 1953, and a
Department of Veterans Affairs rating decision, dated 2 September 2004 and
8 September 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 16 February 1953.  The application submitted in this case
was received on 5 November 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.  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 in that fire.  This case is being considered
based on reconstructed records, which consist primarily of the applicant's
DD Form 214, dated 16 Februrary 1953, a VA rating decision and various
medical document provided by the applicant.
4.  The DD Form 214 issued to the applicant on the date of his separation,
16 February 1953, shows he was inducted into the active Army on 20 February
1951.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and
Campaign Ribbons Awarded or Authorized) shows that during his active duty
tenure, he earned the Korean Service Medal with 1 bronze service star and
the United Nations Service Medal.

5.  Item 29 (Wounds Received As a Result of Action with Enemy Forces) of
the applicant’s DD Form 214 contains the entry “None”.

6.  There are no orders or other documentary evidence on file that indicate
the applicant was ever wounded in action, or that he was ever treated for a
wound/injury he received as a result of hostile action.  Further, there is
no documentary evidence that shows he was ever wounded in action or
recommended for and/or awarded the PH.

7.  In connection with the processing of this case, a member of the Board
staff reviewed the Korean War Casualty File.  The applicant’s name was not
included in this list of casualties.

8.  The applicant provides a Department of Veterans Affairs rating
decision, dated 2 September 2004, which shows that he was granted a service
connection for neurological residuals of a shell fragment wound to the
right upper tibia area and vascular injuries to the right lower extremity
due to wound with an evaluation of 10 percent.

9.  The VA rating decision states, in effect, that the rating decision was
based on current medical examinations and evidence which stem from the
applicant’s report that he has intermittent swelling of the right leg.
However, the VA rating decision does not indicate that medical documents
prepared at the time the applicant sustained his injuries were available or
reviewed in order to determine service connection.

10.  The applicant also provides various medical consultation slips which
show that, on 26 September 1952, he was treated for acute cellulitis from
an unknown cause and for an abscess of the right tibia on 28 September
1952.  However, there is no confirmation that these treatments were
necessary as a result of injuries the applicant sustained in combat.
11.  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.  This
regulation also provides that there is no statute of limitations on
requests for award of the Purple Heart.

12.  As a matter of information, the Korean War Service Medal was issued by
the government of the ROK and approved for acceptance by the Department of
Defense.  Responsibility for distribution of this award was given to the
Department of the Air Force.  To apply, veterans must submit a copy of
their
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 award 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’s contention that he is entitled to the PH was carefully
considered.  However, by regulation, in order to award the PH it is
necessary to establish that a soldier was wounded in action, the wound
required treatment by a medical officer and the record of medical treatment
must have been made a matter of official record.

2.  The VA rating decision, provided by the applicant, establishes that he
has a current condition which causes him intermittent swelling of his right
leg.  However, there is no documentation available in the applicant’s
military record, nor does he provide any documentation which clearly
establishes that the swelling of his right leg is as a result of a shell
fragment wound he sustained during his service in the Korean War, and that
these injuries were as a result of combat action.

3.  Further, the available evidence in this case provides no corroboration
of the applicant's claim that he was wounded or injured in action.  Thus,
although the veracity of the applicant’s claim that he was injured while
serving in the ROK during the Korean War is not in question, the regulatory
burden of proof necessary to support award of the PH has not been satisfied
in this case.  As a result, the requested relief must be denied in the
interest of all those who served during the Korean War and who faced
similar circumstances.

4. In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that he record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 February 1953.  Therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
15 February 1956.  Although the applicant did not file within the ABCMR's
statute of limitations, it is appropriate to waive failure to timely file
in this case based on the fact there is no statute of limitations on
requests for award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__reb___  ___lf___  __lmd___  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.



                                        Ronald E. Blakely
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040009590                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050927                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107.0015                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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