RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  15 May 2007
	DOCKET NUMBER:  AR20070000181 


	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

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Ms. Yolanda Maldonado

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Gerald J. Purcell

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 request, in effect, that he be awarded 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) shows that he was wounded at Heartbreak Ridge, Korea, on 20 October 1951.  He adds that he was never awarded the Purple Heart and he believes that he is due one as he was wounded in combat.

3.  The applicant provides a copy of his DD Form 214, a copy of his WD AGO Form 8-118 (Disposition Board Proceedings), a copy of his DA Form 199 (Proceedings of Physical Evaluation Board), and a copy of his Standard Form (SF) 88 (Report of Medical Examination), in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 22 July 1952, the date he was separated from active duty by reason of physical disability.  The application submitted in this case is dated 19 December 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's reconstructed records contain a copy of his DD Form 214 which shows that he was inducted and entered active duty in the Regular Army on 22 September 1950.  He was trained in military occupational specialty (MOS), 4641, as a Field Wireman.  He was promoted to corporal on 18 September 1951. He completed 9 months and 19 days of foreign service.

5.  The applicant provides a copy of his WD AGO Form 8-118, dated 16 June 1952, which shows that he was admitted to the hospital for a fracture, left heel.  He was diagnosed as having ankylosis, fibrous, left sub-astragalar joint as a result of trauma incurred on 28 October 1951, in Korea, when he stepped on a trip flare.  He was found not fit for any military duty and was referred to a PEB (physical evaluation board).

6.  The applicant provides a copy of his SF 88 which shows that he was found qualified for duty with a 113111 physical profile.  

7.  The applicant provides a copy of a DA Form 199, dated 23 June 1952, which shows that he appeared before an informal PEB.  The PEB determined that his fitness was 10 percent disabling and permanent and recommended separation with severance pay.  The board adjourned on the same day.  The clinical abstract attached to his PEB indicates that he was laying telephone wire in Korea on 28 October 1951, when he stepped on a trip flare and sustained a fracture of the foot, namely the heel.  He was evacuated through channels, arriving at Percy Jones Army Hospital on 3 January 1952.  

8.  The applicant served until he was separated from active duty on 22 July 1952 by reason of physical disability.  

9.  The applicant's DD Form 214 shows he was awarded the Combat Infantryman Badge, the Korean Service Medal with two bronze service stars, and the United Nations Service Medal.  His DD Form 214 does not show any additional awards.

10.  Item 29 (Wounds Received as a Result of Action With Enemy Forces), of his DD Form 214, shows the entry "Heartbreak Ridge, Korea, 20 Oct 51."

11.  The applicant’s name does not appear on the Korean War Casualty File for a wound received on 20 October 1951 during his service in Korea. 



12.  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.  This regulation also provides that there is no statute of limitations on requests for award of the Purple Heart. 

13.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign 
Participation Credit Register), dated 6 July 1961, shows that the applicant 
was assigned to a unit which was awarded the Republic of Korea Presidential 
Unit Citation, by Department of the Army General Orders Number 22, dated 1956.

14.  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 Republic of Korea - Korean War Service Medal.  To qualify for award of the Republic of Korea - Korean War Service Medal, 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

15.  Army Regulation 600-8-22 provides, in pertinent part, that the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 through 27 July 1954, 1 January 1961 through 14 August 1974, 2 August 1990 through 30 November 1995, and 11 September 2001 to a date to be determined

DISCUSSION AND CONCLUSIONS:

1.  There are no orders awarding the applicant the Purple Heart, he is not listed on the Korean War Casualty File, and there are no medical records available to show that he was treated for a wound that he may have received as a result of hostile action.  Therefore, there is an insufficient basis upon which to approve award of the Purple Heart.




2.  The evidence provided by the applicant shows that he fractured his left heel as a result of trauma which incurred on 28 October 1951, in Korea, when he stepped on a trip flare.  He was diagnosed as having ankylosis, fibrous, left sub-astragalar joint.  It does not appear that his injury was related to action or activity on the part of either the Chinese or North Korean enemy.  This evidence is insufficient to approve an award of the Purple Heart.  

3.  It is noted that item 29, of his DD Form 214, shows that the applicant was wounded at Heartbreak Ridge, Korea, on 20 October 1951.  There is no evidence, and the applicant has provided none, to show that he received treatment for a wound as a result of hostile action on 20 October 1951, while serving in Korea.  Therefore, the entry, solely by itself, does not support an award of the Purple Heart and he is not entitled to correction of his records to show the award of the Purple Heart. 

4.  The evidence of record shows that the applicant is entitled to award of the Republic of Korea Presidential Unit Citation.  Therefore, he is entitled to correction of his DD Form 214 to show this unit award.

5.  The evidence shows the applicant served during the qualifying period for award of the Republic of Korea - Korean War Service Medal.  He is therefore entitled to this award and to have it added to his DD Form 214. 

6.  The evidence shows that the applicant served during a qualifying period for award of the National Defense Service Medal.  He is therefore entitled to this award and to have it added to his DD Form 214.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 22 July 1952; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 21 July 1955.  Although the applicant did not file within the ABCMR's 3-year 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.









BOARD VOTE:

_LD_____  ___YM___  __JTP__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board unanimously determined during their review that the available evidence presented was sufficient to warrant a recommendation for full relief and to excuse failure to timely file.  The applicant provided a DD Form 214 with Item 29 clearly stating he received wounds in action with an enemy force in Korea, on 
20 October 1951.  Since the DD Form 214 is a matter of official record and presumed to be completed and authenticated by competent authority, this should be sufficient evidence and nothing further should be required.  As a result the Board determined that the overall merits of this case are sufficient as a basis for correction of the records of the individual concerned to show award of the Purple Heart for wounds received in action on 20 October 1951.

2.  The Board further determined that administrative error in the records of the individual concerned should be corrected.  Therefore, the applicant is entitled to award of the Republic of Korea Presidential Unit Citation; the Republic of Korea-Korean War Service Medal; and the National Defense Service Medal.




___  Yolanda Maldonado____
          CHAIRPERSON




INDEX

CASE ID
AR20070000181
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070515
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19520722
DISCHARGE AUTHORITY
AR 600-450
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
107
2.

3.

4.

5.

6.