RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 February 2007
	DOCKET NUMBER:  AR20060011962 


	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. Gerard W. Schwartz

Acting Director

Mrs. Victoria A. Donaldson

Analyst

The following members, a quorum, were present:


Mr. Ted S. Kanamine

Chairperson

Mr. Larry C. Bergquist

Member

Ms. LaVerne M. Douglas

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 he was wounded while in combat in Korea. [The application is written in Spanish]

3.  The applicant did not provide any additional documentary evidence in support of this application.


CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 October 1954, the date of his permanent disability retirement.  The application submitted in this case is dated 12 August 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.  Records show the applicant was inducted into the Army on 22 September 1952 and the highest grade he held on active duty was private two/pay grade
E-2.

4.  Records show that the applicant was honorably discharged from active duty on 31 October 1954 after serving 2 years, 1 month, and 9 days.

5.  The applicant's DD Form 214 (Report of Separation from the Armed Forces of the United States) does not show award of the Purple Heart.  There are no orders in the applicant’s service personnel records which show that he was awarded the Purple Heart.

6.  Section 8 (Wounds Received Through Enemy Action) of the applicant's DD Form 230 (Service Records) does not contain an entry.

7.  The applicant's records contain Office of the Surgeon General Hospital Admission Cards which shows that he was treated at a military medical facility on 26 July 1953 for a compound fracture.  This record further shows that the wound was classified as a non-battle injury and the causative agent was identified as "Accidents in connection with use of own instrumentalities of war; Explosion of small arms ammunition."

8. The applicant's records contain a Line of Duty Investigation Report which shows that the applicant sustained a gun shot wound to his left leg while cleaning his gun.  The Line of Duty Investigation Report further shows that the applicant's injuries occurred in the line of duty-not due to own misconduct.

9.  There is no medical evidence in the available records which show that the applicant sustained wounds as a result of hostile action or that he was treated for wounds sustained as a result of hostile action.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against and enemy or 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.  This regulation also provides that there are no time limitations for requests for award of the Purple Heart.

11.  Review of the applicant's records indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

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.  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.  The applicant's contention that his entitled to award of the Purple Heart was carefully considered and determined to be without merit.  
2.  Evidence of record clearly shows that the applicant sustained wounds as a result of small arms ammunition; however, medical records show that the wound was accidentally self-sustained.  The applicant was not involved in hostile action at the time the injury was sustained nor was the wound a direct result of contact with an enemy force.  As a result there is not basis to grant award of the Purple Heart in this case.

3.  Records show the applicant served a qualifying period of service for award of the Republic of Korea-Korean War Service Medal.  Therefore, the applicant is entitled to award of the Republic of Korea-Korean War Service Medal and correction of his records to show this award.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 October 1954; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 October 1957.  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 is no statute of limitations on requests for award of the Purple Heart.

5.  Evidence shows that the applicant’s records contain 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_LMD___  __LCB___  _TSK___   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that it was appropriate to waive failure to timely file in this case.



2.  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 to show award of the Purple Heart.

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 award of the Republic of Korea-Korean War Service Medal.




___Ted S. Kanamine_____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.