RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           6 December 2005
      DOCKET NUMBER:  AR20050007800


      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. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Donald W. Steenfott           |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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, he received shell fragment wounds to
his leg, but was never awarded the PH.

3.  The applicant provides a Department of Veterans Affairs (VA) Rating
Decision in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 14 January 1954.  The application submitted in this case
was received on 25 May 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 record shows he was inducted into the Army and entered
active duty on 7 January 1952.  He was trained in, awarded, and served in
military occupational specialty (MOS) 1740 (Radio Operator).

4.  The applicant’s Service Record (DD Form 230) shows, in Section 2
(Appointments, Promotions, or Reductions), that he was promoted to the rank
of private first class (PFC) on 28 September 1953, and that this is the
highest rank he held while serving on active duty.  It also shows he was
reduced to private/E-2 (PV2) for cause on 2 November 1953.

5.  Section 3 (Organizations to Which Assigned and Attached) of the
applicant’s DD Form 230 shows he served in Korea from 15 June through 14
December 1953, and was assigned to Headquarters and Headquarters Company
(HHC), 3rd Battalion, 5th Infantry Regiment.



6.  Section 8 (Wounds Received Through Enemy Action) of the applicant’s
DD Form 230 is blank, and Section 9 (Medals, Decorations, and Citations)
shows he earned the Combat Infantryman Badge (CIB), Korean Service Medal
(KSM) with 1 bronze service star, United Nations Service Medal (UNSM), and
National Defense Service Medal (NDSM).

7.  The applicant’s record is void of any indication, or documentation that
indicates he was ever wounded in action, or treated for a combat related
wound or injury.  The record does include a Report of Medical Examination
(SF 88) documenting the applicant’s separation medical examination and a
Report of Medical History (SF 89) completed by the applicant, both dated 13
January 1954.

8.  The clinical evaluation portion of the SF 88 contains two abnormal
findings in Item 37 (Lower Extremities) and Item 39 (Identifying Body
Marks, Scars, Tattoos).  The note explaining the Item 37 finding is
“Varicose veins mild L-1” and the note explaining the Item 39 finding is
“Appendectomy scar”.  In the SF 89, the applicant indicated he was in
“Fair” health, and noted that he was unable to stand for any length of time
and that he had varicose veins, which had given him trouble since entering
the Army.  Neither the SF 88 nor SF 89 give any indication that the
applicant ever received a wound or injury as a result of enemy action.

9.  On 14 January 1954, the applicant was honorably separated after
completing 1 year, 11 months, and 19 days of creditable active military
service and accruing 19 days of time lost due to being absent without leave
(AWOL).  The DD Form 214 he was issued confirms he served overseas for 7
months and 14 days, and Item 27 (Decorations, Medals, Badges,
Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows
he earned the Korean Service Medal, National Defense Service Medal, United
Nations Service Medal and Combat Infantryman Badge.  Item 29 (Wounds
Received As A Result of Action With Enemy Forces) contains the entry “NA”.
The applicant authenticated the separation document with his signature in
Item 48 (Signature of Person Being Separated).

10.  The applicant provides a VA Rating Decision, dated 30 November 1993,
which considered his request for service connection for a left knee
condition, low back condition, and lung disorder secondary to muster gas
exposure.  The VA granted service connection for the left knee condition
and awarded a disability rating of 10 percent (%).  Service connection for
the other two conditions was denied.


11.  The applicant also provides a Board of Veterans Appeals that
considered the following issues:  service connection for a Post-Traumatic
Stress Disorder (PTSD); service connection for low back disability;
increased disability rating for left knee disability; and entitlement to
special monthly pension based on the need for regular aid and attendance of
another person or at the housebound rate.  The appeals board granted
service connection for PTSD, but deferred judgment on the remaining issues.


12.  The VA appeals board proceedings contained a discussion regarding the
conflict regarding the circumstances surrounding the applicant’s knee
injury.
The applicant claimed that in April 1953, he received shrapnel wounds from
an enemy mortar round and that he was treated for these wounds at a
military hospital where the shrapnel was removed.  The military medical
record indicated the applicant sustained a non-combat related abrasion to
his knee in July 1953.  A 26 December 2000 VA letter regarding the
applicant’s status indicated the applicant’s disability was rated at 100%.


13.  During the review of this case, a member of the Board staff reviewed
the Korean War Casualty Roster.  The applicant’s name was not included in
this Department of the Army (DA) list of Korean War Casualties.

14.  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.

15.  Paragraph 5-8 of the awards regulation provides guidance on the Korean
Service Medal.  It states, in pertinent part, that a bronze service star is
authorized for each Korea campaign a member is credited with participating
in.

16.  Department of the Army Pamphlet 672-1 (Unit Campaign Participation
Credit Register-Korea) establishes individual eligibility for campaign
participation credit, assault landing credit, and unit citation badges
awarded during Korea.  It
confirms that during his assignment, the applicant’s unit received the
Republic of Korea Presidential Unit Citation (ROKPUC), and was credited
with participating in the Korea Summer 1953 campaign.

17.  On 20 August 1999, the Korean War Service Medal (KWSM) was authorized
for eligible veterans of the Korean War.  Responsibility for distribution
of the KWSM was given to the Department of the Air Force.  An application
should be submitted, with a copy of a 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, application may be
made to this Board to add this award to his DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH and the supporting VA
documentation he provided were carefully considered.  However, by
regulation, in order to award a PH, it is necessary to establish that the
wound for which the award is being made was received as a result of enemy
action, that the wound was treated by military medical personnel, and that
the record of medical treatment was made a matter of official record.

2.  The VA documentation confirms the applicant was granted service
connection and a disability rating for a knee injury he received while
serving on active duty.  However, the facts and circumstances surrounding
this injury are unclear.  The  SF 89 completed by the applicant during the
separation physical examination process confirms he suffered from varicose
veins and that he was unable to stand for any length of time.  His final
separation examination confirms he suffered from varicose veins; however,
nether of these documents contain any indication that the applicant was
ever wounded or injured as a result of enemy action.

3.  The applicant’s Service Record contains no entry in Section 8 and Item
29 of his DD Form 214 contains the entry “NA”, which indicates he never
received a wound or injury as a direct result of, or that was caused by
enemy action.

4.  The PH is not included in the list of earned awards contained in
Section 9 of the applicant’s DD Form 230 or Item 27 of his DD Form 214.
The applicant authenticated his DD Form 214 with his signature on the date
of his separation from active duty.  In effect, this was his verification
that the information contained
on the DD Form 214, to include the Item 27 and Item 29 entries, was correct
at the time.  Finally, his name is not included on the Korean War Casualty
Roster, the official DA list of Korea battle casualties.

5.  While the applicant’s current medical conditions, as documented in the
VA file, are unfortunate, absent any evidence of record to corroborate his
claim that he was wounded as a result of enemy 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.

6.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH now under consideration on 14 January
1954.  Therefore, the time for him to file a request for correction of any
error or injustice expired on 13 January 1957.  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.

7.  The evidence of record does show that based on his service and campaign
participation in Korea, the applicant is entitled to the ROKPUC and 1
bronze service star with his KSM.  The omission of these awards from his
record and separation document is an administrative matter that does not
require Board action to correct.  Therefore, the applicant’s record will be

administratively corrected 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

___BPI __  __DWS__  __EEM__  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 to show his entitlement to the Republic of Korea Presidential
Unit Citation and 1 bronze service star with his Korean Service Medal; and
by providing him a correction to this separation document that includes
these changes.





            ____Bernard P. Ingold_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050007800                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/12/06                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1954/01/14                              |
|DISCHARGE AUTHORITY     |AR 615-360-5                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  61   |107.0015                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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