RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         18 July 2006
      DOCKET NUMBER:  AR20050015757


      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. Lester Echols                 |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Ms. Ernestine R. Fields           |     |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 the Purple Heart with 2nd Oak
Leaf Cluster (3rd Award).

2.  The applicant states, in effect, he was wounded in action in Korea on
14 February 1951, 31 October 1951, and 10 March 1952; however, these
incidents were not entered on his separation document (DD Form 214).

3.  The applicant provides his DD Form 214 and 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 3 February 1954, the date of his separation from active
duty.  The application submitted in this case is dated 25 October 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 that he enlisted in the Regular Army and
entered active duty on 30 August 1950.  His Service Record (WD AGO Form 24)
shows, in Section 6 (Original Assignment and Organizations to Which
Subsequently Assigned During This Period of Service) shows that while he
was serving in Korea, he was assigned to the 5th Cavalry Regiment.

4.  Section 12 (Appointments, Promotions, or Reductions) of the applicant's
Service Record shows he was advanced to private/E-2 (PV2) on 25 June 1951,
and that this is the highest rank he held while serving on active duty.  It
also shows he was reduced to private/E-1 (PV1) as a result of a summary
court-martial conviction on 20 May 1952.  He was advanced back to PV2 on 30
November 1952, and again reduced to PV1 as a result of a special court-
martial conviction on 25 March 1953.  On 25 July 1953, he was advanced back
to PV2, which is the grade he held at the time of his separation.

5.  The applicant's service record also shows that he earned the following
awards during his tenure on active duty:  Korean Service Medal with 4
bronze service stars; United Nations Service Medal; National Defense
Service Medal; and Combat Infantryman Badge.  The PH is not included in the
list of awards contained on the WD AGO Form 24.  Section 8 (Wounds Received
in Action) of contains no entries.

6.  A Report of Medical Examination (SF 88), dated 2 February 1954, on file
in the applicant's record documents his separation physical examination.
It noted that the applicant had a scar on his left forearm and left knee.
In the summary of defects, the attending physician entered the note
"contracture muscles, lt forearm".  There is no indication that the
applicant was wounded or injured in action on this document.

7.  On 3 February 1954, the applicant was honorably separated after
completing 2 years, 11 months, and 21 days of active military service in
the Army.  The DD Form 214 he was issued does not include the PH in the
list of awards contained in Item 27 (Decorations, Medals, Badges,
Commendations, Citations and Campaign Ribbons Awarded or Authorized), and
Item 29 (Wounds Received as a Result of Action with Enemy Forces) contains
the entry "None".  The applicant authenticated this document with his
signature in Item 48 (Signature of Person Being Separated).

8.  The applicant provides a VA Rating Decision, dated 10 March 2004, which
granted him service connection for a Post Gunshot Wound and Extensive
Osteoarthritis of left knee, Post Traumatic Stress Disorder, Forearm
Condition, with Residual Pain, Deformity and Disturbance of Function, and
Scars, Left Arm. This document indicates that the applicant's service
medical records show he received a shrapnel injury to left knee on 31
October 1951, and a bullet wound to the left knee in July 1951, in Korea.
However, there is no indication that these wounds were received as a result
of enemy action, and the military medical records used for this
determination were not included with the application.

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

10.  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.

11.  The Government of the Republic of Korea issued the Korean War Service
Medal (KWSM) 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.  The Department of Defense approved acceptance and wear of the
KWSM.  To qualify for award of the KWSM, the veteran must have served
between 25 June 1950 and 27 July 1953 and been on permanent assignment for
30 consecutive days, or on temporary duty for 60 non-consecutive days,
within the territorial limits of Korea, in the waters immediately adjacent
thereto, or in aerial flight over Korea participating in actual combat
operations or in support of combat operations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he is entitled to the PH and the
supporting documents he submitted were 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 veracity of the applicant's claim that he was injured while in
Korea and of the information contained in the VA Rating Decision is not in
question.  However, the evidence of record is void of any orders, or other
documents that indicate the applicant was ever wounded in action, or
treated for a combat related wound or injury by military medical personnel.
 His separation report of medical history and physical examination, while
noting injuries he received in Korea, give no indication that his injuries
were received as a result of enemy action.  Section 8 (Wounds Received in
Action) of his WD AGO Form 24 is blank, which indicates he was never
wounded in action while serving on active duty, and the PH is not included
in the list of authorized awards contained on the WD AGO Form 24.

3.  Further, the list of awards contained in Item 27 of the applicant's DD
Form 214 does not include the PH, and Item 29 contains the entry "None",
which confirms he was not wounded in action during the period covered by
the separation document.  The applicant authenticated the DD Form 214 with
his signature on the date of his separation.  In effect, his signature was
his verification that the information contained on the separation document,
to include the Item 27 and Item 29 entries, was correct at the time the DD
Form 214 was prepared and issued.

4.  Finally, the applicant's name is not included on the Korean War
Casualty Roster, the official DA list of Korea battle casualties.
Therefore, absent any evidence of record to corroborate the applicant's
claim that his injuries were incurred as a result of enemy action in Korea,
the regulatory burden of proof necessary to support award of the PH has not
been satisfied in this case.

5.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH now under consideration on 3 February
1954, the date of his separation from active duty.  Therefore, the time for
him to file a request for correction of any error or injustice expired on 2
February 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.

6.  The evidence does show that based on his service in Korea, he is
entitled to KWSM.  The omission of this award from his record and
separation document is an administrative matter that does not require Board
action to correct.  Thus, the applicant’s records 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

___LE  __  ___PHM_  __ERF __  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 concerned 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 Korean War Service
Medal; and by providing him a correction to his separation document that
includes this award.




                                  _____Lester Echols_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015757                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/07/11                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1954/02/03                              |
|DISCHARGE AUTHORITY     |AR 615-365                              |
|DISCHARGE REASON        |Conv of Gvmt                            |
|BOARD DECISION          |DENY with Note                          |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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