RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 August 2006`
      DOCKET NUMBER:  AR20050018119


      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. Dean L. Turnbull              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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 award of the Purple Heart.

2.  The applicant states, in effect, that his DD Form 214 (Report of
Separation from the Armed Forces of the United States) clearly shows that
he received wounds as a result of action with enemy forces.

3.  The applicant provides a copy of his DD Form 214 and a copy the
Veterans Administration (VA) Compensation and Pension Examination, dated 5
November 1992.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 30 June 1951, the date he retired from active duty.  The
application submitted in this case is dated 2 December 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 entered active duty on 4 November 1948.
 He completed basic combat training and advanced individual training, and
was awarded the military occupational specialty (MOS) 4602 (Cannoneer)

4.  The applicant’s WD AGO Form 24A, Service Record, shows that the
applicant was transferred to Japan on 19 February 1949.  He was assigned
from the 76th AAA Battalion to the 933rd AAA Battalion on 10 March 1949.
He was imprisoned in the stockade by order of a court-martial on 22 July
1950.  After serving his sentence, he was assigned to the 8th Army
Regimental Combat Team and was deployed to P’Chang-dong, Korea on 3 August
1950.  The applicant was assigned to the 40th AAA Brigade on 5 August 1950
and then to the 933rd AAA Battalion on 17 August 1950.  He departed the
933rd AAA Battalion on 28 September 1950.  He was assigned as a patient to
the Army Medical Holding Detachment at Fitzsimons US Army Hospital on 18
October 1950.


5.  The applicant was honorably retired for physical disability on 30 June
1951 after serving 2 years, 7 months, and 27 days of active service.

6.  Item 24 (Decoration, Medals, Badges, Commendations, Citations and
Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 does
not show award of the Purple Heart.

7.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) of
the applicant’s DD Form 214 shows the entry "Ponhang Korea Aug 50."

8.  The copy of the VA compensation and pension document shows the
applicant stated that he has “intrusive memories of his combat experiences
in Korea, particularly of being overrun by huge numbers of Chinese troops
in the vicinity of the Chosin Reservoir in North Korea in late November and
early December, 1950.”  Also recorded in the VA compensation and pension
document was the applicant’s statements that he received shrapnel in his
right foot, a wound to his abdomen on the left side, a superficial small
arms fire wound in his right temple area, and a spot on his lung.  He also
said that he was knocked down a mountain, was shot, and was stuck by a
bayonet by the enemy.  However, there is no record that shows he was
treated for such wounds.

9.  The applicant's WD AGO Form 8-118 (Disposition Board Proceedings for
Officers), for his medical board, dated 31 May 1951, does not show any
diagnosis for wounds sustained as a result of combat actions with enemy
forces; however, it does show he was diagnosis with Tuberculosis.

10.  There are no medical records in the applicant's official military
personnel file to show he sustained wounds as a result of hostile action or
to show he was treated for wounds sustained as a result of hostile action.

11.  There are no general orders in the applicant's records to show he was
awarded the Purple Heart.

12.  A review of the Republic of Korea Casualty Files does not show the
applicant's name listed among those wounded.

13.  Army Regulation 672-5-1 (Military Awards) provides, in pertinent part,
that the Purple Heart is awarded for a wound sustained as result of hostile
action.  Substantiating evidence must be provided to verify that the wound
was the result of hostile action, the wound must have been treated by a
medical officer, and the medical treatment must have been made of official
records.  This regulation does not indicate a time limitation for
requesting award of the Purple Heart.

14.  The battle at Chosin Reservoir is legendary in the annals of the
military.  The 5th and 7th Marine Regiments, the 1st Battalion of the 32nd
Infantry, the 3rd Battalion of the 31st Infantry, the 57th Field Artillery
Battalion, and the 31st Tank Company were surrounded by three Chinese
divisions.  General MacArthur ordered a withdrawal on November 30, 1950,
but there was no “rear” to withdraw to.  Some of the surrounded forces
escaped by traveling over the rough, steep terrain in dark, bitter cold —
something the Chinese would not expect — and made it undetected by the
enemy.  Once the men secured Toktong Pass, the 5th and 7th Marine Regiments
fought their way to Hagaru-ri.  It took them 79 hours to travel 14 miles
carrying the wounded and most of their equipment, but on December 3rd, they
entered the Hagaru-ri perimeter.  POW interrogations — extremely reliable
at this point in the war — indicated at least seven North Korean divisions
near Hagaru-ri.  The Chinese knew its strategic location was key to Marine
Corps success breaking out.  Once in Hagaru-ri, the 5th and 7th Marine
Regiments, and the other units, rested, regrouped, and prepared for their
next move, south to Koto-ri.  Air Force C-46s and C-47s and other United
Nations aircraft began evacuation of about 4,300 wounded and frostbite
victims.  The dead were given first priority for evacuation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his DD Form 214 be corrected to show the
Purple Heart for wounds received as a result of action with the enemy
forces.

2.  The VA compensation and pension examination provided by the applicant
shows the applicant reported having suffered many wounds in combat when he
was overrun by huge numbers of Chinese troops in the vicinity of the Chosin
Reservoir in North Korea in late November and early December, 1950.
However, his records show that he was a patient assigned to the Army
Medical Holding Detachment at Fitzsimons US Army Hospital on 18 October
1950.

3.  The applicant's WD AGO Form 8-118 merely shows that he was diagnosed
with Tuberculosis and was referred to a PEB for disposition.

4.  While the applicant’s DD Form 214 shows that he was wounded in Ponhang,
Korea in August 1950, there is no evidence that he was ever treated for
wounds sustained as a result of hostile action.  In the absence of evidence
to corroborate the entry on the applicant’s DD Form 214, there is
insufficient basis to grant award of the Purple Heart in this case.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 June 1951; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
29 June 1954.  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 are no time limitations on requests for award of
the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___jcr___  ____wdp_  ____ksj__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that it was appropriate to waive failure to timely
file in this case based on the Purple Heart.

2.  The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determines the overall merits of
this case are insufficient as basis for correction of the records of the
individual concerned to show award of the Purple Heart.




                                  ______William D. Powers_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050018119                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060831                                |
|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.                      |                                        |


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