RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 March 2007
	DOCKET NUMBER:  AR20060012229 


	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. Thomas M. Ray

Chairperson

Mr. Jeffrey C. Redmann

Member

Mr. James R. Hastie

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 correction of his records through counsel.

2.  The applicant did not provide a statement with this application.

3.  The applicant provided additional evidence through his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be awarded the Purple Heart.

2.  Counsel states that the applicant was injured in December 1950 while serving in Korea.  Counsel continues that the truck the applicant was riding in struck a landmine and he was evacuated to Camp Gordon, Georgia where surgery was performed

3.  Counsel provides a copy of the applicant's DD Form 214 (Report of Separation from the Armed Forces of the United States) and three pages of medical records in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 24 January 1952, the date of his expiration of term of service.  The application submitted in this case is dated 17 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 enlisted in the Army on 23 March 1948 and the highest grade he held on active duty was corporal/pay grade E-4.

4.  Records show that the applicant was honorably released from active duty on 24 January 1952 after serving 3 years, 10 months, and 2 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.  Item 29 (Wounds received as a result of action with enemy forces) of the applicant's DD Form 214 contains the entry "none."

6.  The applicant's records contain a Headquarters US Army Hospital, Camp Gordon, Georgia, letter dated 3 July 1951, which informed his parents that he was admitted to the hospital as an evacuee from Tokyo.  This letter did not indicate that the applicant's wounds were received as a result of hostile action.

7.  The applicant's records contain a memorandum dated 23 November 1951 from the Adjutant General of the Army requesting verification of eligibility for award of the Purple Heart.  The memorandum contained several endorsements which indicate that the request was forwarded through the applicant's chain of command.  The third endorsement shows that the applicant's records indicated that he was a Non-Battle Casualty on 18 May 1951 and the nature of the wounds received by the applicant was not in accordance with applicable regulation for award of the Purple Heart.

8.  The applicant's records show that he applied for disability compensation.  In his application, the applicant indicated that he was not wounded or injured in action or hospitalized for such wounds.  The applicant's claim form further showed that the applicant was hospitalized for non-battle injuries from 19 May 1951 through 10 September 1951 and that he was evacuated to the US on 23 June 1951 for further medical treatment.

9.  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 1 June 1951 for a ruptured disc.  This record does not show that the wound was classified as a battle injury.

10.  The applicant provided three pages of medical records from his military medical file.  The records show that he sustained an injury to his back on 4 December 1950 when a truck he was riding struck a land mine.  The medical records show that he was treated for a herniated disc in his back and later had surgery to repair the disc.

11.  Army Regulation 600-8-22 (Military Awards) 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 by a medical officer, and the medical treatment must have been made a matter of official record.

12.  Review of the applicant's records indicates entitlement to an additional award and decoration that is not shown on his DD Form 214.

13.  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 a truck he was riding hitting a land mine; however, there is no evidence that the landmine was placed by enemy forces.  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.  

3.  The applicant's chain of command reviewed the applicant's injury at the time and determined that it did not meet the strict criteria for award of the Purple Heart.  Based on the foregoing, there is not basis to grant award of the Purple Heart in this case.

4.  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.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 24 January 1952; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 23 January 1955.  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.

6.  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

_JCR___  __JRH__  _TMR____  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.




___Thomas M. Ray____
          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.