RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 June 2007
	DOCKET NUMBER:  AR20070000654 


	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

MR. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Jerome L. Pionk

Member

Ms. Jeanette B. McPherson

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 that item 29 (Wounds Received as a Result of Action with the Enemy Forces) of his DD Form 214 (Report of Separation from the Armed Forces of the United States) be corrected.

2.  The applicant states, in effect, that item 29 of his DD Form 214 is incorrect.  He states that he was wounded by enemy fire the night of 26 July 1953 during a mortar barrage by the Chinese on Outpost Harry.  He further states, in effect, that he did not think it was important at the time, but now he realized how he and his family can benefit from the correction.

3.  The applicant provides a copy of his DD Form 214, a copy of a written statement, dated 2 January 2007, a copy of an article dated September/October 1999, a copy of an enlisted roster dated 31 July 1953, and a copy of Headquarters, 2nd Infantry Division, Special Orders Number 221, dated 9 August 1953.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 12 September 1953.  The application submitted in this case is dated 2 January 2007.

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 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 to conduct a fair and impartial review of this case.

4.  The applicant's reconstructed record shows that he entered active duty on  
19 September 1951.  He served a tour of duty in the military occupational specialty 1745 (Light Weapons Infantryman) for 11 months and 20 days in the Republic of Korea.  He was honorably released from active duty on  
12 September 1953 after serving 1 year, 11 months, and 24 days of total service.

5.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) of the applicant's DD Form 214 shows the entry "None."

6.  A review of the Republic of Korea Casualty Files does not show the applicant's name is listed among those wounded.

7.  The U.S. Army Surgeon General Office (SGO) hospital file shows that the applicant was treated for passive-aggressive reaction; however, it does not show that the applicant was admitted specifically for an injury or a wound incurred as a result of hostile action.

8.  The statement that the applicant submitted states he was a member of Company C, 1st Battalion, 23rd Regiment, 2nd Infantry Division in the Republic of Korea when he was wounded in his back by an enemy mortar fire.  The enlisted roster, dated 31 July 1953 does not show that the applicant was wounded.

9.  The article that the applicant submitted, states "There were wounded from Outpost Harry from a mortar barrage on July 26 with Charlie Co., 23rd Regt., 
2nd ID.  Wounds to face and head cleaned, probed, bandaged and return to 'MLR'."  However, this article does not identify the applicant as a member being wounded in his back by an enemy mortar fire.

10.  Headquarters, 2nd Infantry Division, Special Orders Number 221, dated  
9 August 1953, shows that the applicant was a member of the 23rd Infantry Regiment when he was reassigned for separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that item 29 of his DD Form 214 is incorrect because he was wounded by enemy fire the night of 26 July 1953 during a mortar barrage by the Chinese on Outpost Harry.

2.  There is no evidence in his available reconstructed records which shows he was wounded as a result of hostile action or treated for such wounds.  His name does not appear on the Republic of Korea Casualty Files or the SGO hospital file.

3.  The article, enlisted roster and the Headquarters, 2nd Infantry Division Special Orders Number 221 does not show evidence of the applicant being wounded by enemy mortar fire.  Without corroborating evidence, those documents are insufficient to correct item 29 of the applicant's DD Form 214.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 12 September 1953.  Therefore, the time for the applicant to file a request for correction of any error or injustice expired on 11 September 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

___jea __  ___jlp___  ____jbm_  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.




________James E. Anderholm_____
          CHAIRPERSON




INDEX

CASE ID
AR20070000654
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070626
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.