RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 November 2005
      DOCKET NUMBER:  AR20050007277


      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. Yvonne Foskey                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas A. Pagan               |     |Chairperson          |
|     |Mr. Eric N. Anderson              |     |Member               |
|     |Mr. Joe R. Schroeder              |     |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 never awarded the PH for
injuries he received while serving in Korea.  He that states during a
mortar attack, a shell exploded next to him that killed several of his
fellow Soldiers, and burned him on both of his legs.  He also states that
he was in a war zone in combat conditions and his award of the PH fell
through the cracks.  He further states that it was unjust for him not to
have received the PH; however, at the time, this is the way “Black” Solders
were treated and ignored.

3.  The applicant provides the following documents in support of his
application:  Self-Authored Letter; Separation Document (DD form 214);
Signature Verification; State of New York Executive Department Division of
Veterans' Affairs Records Verification; and Department of Veterans Affairs
(VA) Rating Decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 18 July 1952.  The application submitted in this case is
dated
16 April 2005.

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, 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 consist of the
applicant’s separation document (DD Form 214).

4.  The applicant’s DD Form 214 shows he entered active duty on 20
September 1950.  It also shows that during his active duty tenure, he
earned the Korean Service Medal with 2 bronze service stars and 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.  On 18 July 1952, the applicant was honorably separated after completing

1 year, 9 months and 29 days of creditable active military service.

7.  During the review of this case, a member of the Board staff reviewed
the Korean War Casualty Rosters.  The applicant’s name was not included in
the list of casualties.

8.  The applicant provides a copy of a VA Rating Decision, dated 19
September 2003, which granted him service connection for neuropapthy to his
feet secondary to cold injury.  This document provides no information
related to leg burns, or that military medical records indicated the
injuries for which he was rated were combat related.

9.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy,
criteria, and administrative instructions concerning individual military
awards.  Paragraph 2-8 contains the regulatory guidance pertaining to
awarding the PH.  It states, in pertinent part, that the PH is awarded to
any member of an Armed Force who is wounded or killed in action.  A wound
is defined as an injury to any part of the body from an outside force or
agent sustained under conditions defined by this regulation.  In order to
support awarding a member the PH, it is necessary to establish that the
wound, for which the award is being made, required treatment by a medical
officer.  This treatment must be supported by records of medical treatment
for the wound or injury received in action, and must have been made a
matter of official record.

10.  On 20 August 1999, the Department of Defense approved acceptance and
wear of the Korean War Service Medal (KWSM) to eligible 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 KWSM 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 was carefully
considered.  However, by regulation, in order to award a PH, it is
necessary to establish that a member was wounded in action that the wound
required treatment by a medical officer and this treatment must have been
made a matter of official record.

2.  The PH is not included in the list of awards contained on the
applicant’s final 19 July 1952 DD Form 214, and his name is not included in
the Korean War Casualty Roster, the official list of Korea battle
casualties.

3.  The veracity of the applicant’s claim that he was injured in Korea is
not in question.  However, absent any evidence (medical treatment records,
eye-witness statements, or record entries) showing that he was ever wounded
in action, or that he was ever treated for a combat related wound or injury
by military medical personnel, the regulatory burden of proof necessary to
support award of the PH has not been satisfied in this case.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 18 July 1952.  Therefore, the time for
him to file a request for correction of any error or injustice expired on
17 July 1955.  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
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____TAP   ___ENA    ___JRS  _  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.




                                  _____Thomas A. Pagan____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050007277                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-11-22                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1952/07/18                              |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY                                   |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |107                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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