RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 21 June 2007
DOCKET NUMBER: AR20070000446
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.
Ms. Catherine C. Mitrano
Director
Ms. Wanda L. Waller
Analyst
The following members, a quorum, were present:
Ms. Sherri Ward
Chairperson
Mr. Richard Dunbar
Member
Mr. David Tucker
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 that while stationed in Seoul, South Korea in 1955 an explosion (friendly fire incident) of napalm blew the walls off of his hut and burned his chest. He contends that he was sent to the infirmary where he was treated for his severe burns.
3. The applicant provides a letter, dated 27 November 2006, from his physician and a copy of his DD Form 214 (Report of Transfer or Discharge).
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error which occurred on 18 April 1957. The application submitted in this case is dated 29 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 applicants failure to timely file.
3. The applicants 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 applicants 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 was inducted on 19 April 1955, served as an artillery crewman, and was honorably discharged on 18 April 1957.
5. The applicant's DD Form 214 shows the Good Conduct Medal and the Marksman Marksmanship Qualification Badge with Carbine Bar as authorized awards. Item 27 (Wounds Received as a Result of Action with Enemy Forces) on his DD Form 214 shows the entry, "None.
6. There are no orders for the Purple Heart in the available records. There is also no evidence in the available records which shows the applicant was wounded or treated for wounds as a result of hostile action in Korea.
7. The actual hostilities for the Korean War ended on 27 July 1953.
8. 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, and the medical treatment must have been made a matter of official record. The regulation also provides, in pertinent part, for award of the Purple Heart to individuals wounded or killed as a result of friendly fire in the heat of battle as long as the friendly projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.
DISCUSSION AND CONCLUSIONS:
1. There is no evidence of record which shows that the applicant was wounded in the heat of battle by a projectile released to destroy the enemy or that he was wounded or treated for wounds as a result of hostile action. The applicant contends that he was wounded in 1955. Since the actual hostilities for the Korean War ended on 27 July 1953, there is insufficient evidence on which to base an award of the Purple Heart in this case.
2. Records show the applicant should have discovered the alleged error now under consideration on 18 April 1957; therefore, the time for the applicant to file a request for correction of any error expired on 17 April 1960. The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
SW_____ _RD____ _DT____ 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.
_____Sherri Ward______
CHAIRPERSON
INDEX
CASE ID
AR20070000446
SUFFIX
RECON
DATE BOARDED
20070621
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
107.0015
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6.
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