RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 October 2006
      DOCKET NUMBER:  AR20060004234


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Patrick McGann                |     |Chairperson          |
|     |Mr. David Gallagher               |     |Member               |
|     |Mr. Roland Venable                |     |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 for a wound he
received in combat during the Korean War.

2.  The applicant states he was wounded while in combat in Korea and he
should have been awarded a Purple Heart for his wound.  In his affidavit,
he states that his platoon was engaged again by opposing forces on or about
15 July 1953, during which time the M-16s (half-tacks mounted with four .50-
caliber machine guns) under his command engaged enemy forces for a
continuous 3-day period. During that time, all 24 .50-caliber machine guns
on his M-16s fired continuously for 72 hours at the enemy forces.  During
this lengthy engagement with enemy forces, he noticed a loud ringing in his
ears and a sudden impairment of hearing. He did not believe his injury to
be serious [enough] at that time to leave his unit and seek medical
treatment.  After his unit was relieved from the front line, he became
aware that his hearing impairment did not go away and he sought medical
treatment for his injury.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
from the Armed Forces of the United States); an affidavit; a legal brief; a
VA Form 3101 (Request for Army Information); and a Standard Form 513
(Consultation Sheet).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel submitted no additional statements in support of the applicant’s
claim.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 16 December 1953.  The letter submitted in this case is dated
15 March 2006.

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.

4.  The applicant enlisted in the Regular Army on 25 April 1951 and was
discharged on 1 May 1952 to accept a commission.  He was appointed as a
Reserve commissioned officer on 2 May 1952 with a concurrent call to active
duty.  He served in Korea and completed 9 months and 6 days of foreign
service.

5.  The Request for Army Information, dated 5 January 1953, indicates the
applicant was treated at the 121st Evacuation Hospital in Korea in
September 1953 for a left foot condition.

6.  The applicant’s Consultation Sheet, dated 14 December 1953, shows he
was examined for partial loss of hearing.

7.  The applicant was honorably released from active duty on 16 December
1953.  His DD Form 214 for the period ending 16 December 1953 shows the
Korean Service Medal with two bronze service stars, the United Nations
Service Medal, the Bronze Star Medal, and the National Defense Service
Medal as authorized awards.

8.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) on
the applicant’s DD Form 214 for the period ending 16 December 1953 shows
the entry “None.”  The applicant’s name is not listed on the Korean
Casualty Roster.

9.  The Department of Veterans Affairs (DVA) Rating Decision, dated 27
January 1999, shows the applicant was granted service connection for
sensorineural hearing loss in his right ear with an evaluation of zero
percent effective 27 October 1998.

10.  The historical files of the 145th Antiaircraft Artillery Automatic
Weapons of the 45th Infantry Division in Korea were reviewed at the
National Archives in College Park, Maryland.  The review failed to show
documentation showing the applicant’s entitlement to award of the Purple
Heart.

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.
Paragraph 2-8b(2) states that for the purpose of considering an award of
the Purple Heart, a “wound” is defined as an injury to any part of the body
from an outside force, element, or agent sustained while in action in the
face of the armed enemy or as a result of a hostile act of such enemy.  The
regulation states that the key issue that commanders must take into
consideration is the degree to which the enemy caused the injury.  The fact
that the proposed recipient was participating in direct or indirect combat
operations is a necessary prerequisite, but is not sole justification for
award.  This regulation also provides that there is no statute of
limitations on requests for award of the Purple Heart.

12.  The Government of the Republic of Korea issued the Korean War Service
Medal (ROK-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
ROK-KWSM.  Effective 1 January 2006, the U.S. Army was authorized to award
the ROK-KWSM to eligible U.S. Army veterans or their next of kin.  To
qualify for award of the ROK-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.  There are no orders which authorize award of the Purple Heart to the
applicant.  His name is not listed on the Korean Casualty Roster.

2.  The applicant's documents from the DVA show he had hearing loss in his
right ear.  He acknowledged he was in a 3-day battle in July 1953, during
which time all 24 of the .50-caliber machine guns on his M-16s fired
continuously.  After that battle, there was a loud ringing in his ears.

3.  The Military Awards regulation states the fact that the proposed
recipient was participating in direct or indirect combat operations is a
necessary prerequisite, but is not sole justification for award of the
Purple Heart.  The degree to which the enemy caused the injury must be
considered.

4.  Considering the applicant was surrounded by his own M-16s during the
battle, with continuous firing of the .50-caliber machine guns mounted on
those M-16s during the 3-day period, there is insufficient evidence to show
that the enemy caused his hearing problem to a degree that would warrant
award of the Purple Heart.
5.  The applicant completed a period of honorable service from 2 May 1952
through 16 December 1953 and served in Korea during this period.
Therefore, he met the eligibility criteria for award of the ROK-KWSM.

6.  Evidence shows that the applicant’s records contain an administrative
error which does not require action by the Board.  Therefore,
administrative correction of the applicant’s records will be accomplished
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.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 December 1953; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 15 December 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

PM______  DG______  RV______  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 an 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 award of the ROK-KWSM.




                                  Patrick McGann________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060004234                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061011                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY WITH NOTE                          |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |107.0015                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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