RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 August 2007
      DOCKET NUMBER:  AR20070002742


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis Greenway               |     |Chairperson          |
|     |Mr. Robert W. Soniak              |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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, in effect, award of the Purple Heart (PH).

2.  The applicant states, in effect, he incurred severe frostbite while in
combat with the 7th Infantry Division in Korea in 1951.

3.  The applicant provides the following documents in support of his
application:  Separation Document (WD AGO Form 53), dated 15 December 1947;
Separation Document (DD Form 214), dated 1 September 1951; Statement of
Claim (VA Form 21-4138); Medical Progress Notes, dated in 2006; and
Department of Veterans Affairs (VA) Rating Decision, dated 29 November
2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 1 September 1951, the date of his final separation from
active duty.  The application submitted in this case is dated 1 February
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 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.  This case is being
considered using reconstructed records, which primarily consist of the
applicant's separation documents and VA medical/disability documents.

4.  The applicant's WD AGO 53 shows he enlisted in the Regular Army and
entered active duty on 3 September 1946.  He served in the Pacific Theater
of Operations from 14 December 1946 through 23 November 1947.
5.  Item 33 (Decorations and Citations) of the applicant's WD AGO 53 shows
he earned the World War II Victory Medal and Army of Occupation Medal with
Japan Clasp during this period of active duty service, and Item 34 (Wounds
Received in Action) contains the entry "None".  The applicant authenticated
the WD AGO Form 53 with his signature in Item 56 (Signature of Person Being
Separated) on 15 December 1947, the date of his separation from active
duty.

6.  The applicant's DD Form 214 shows that on 19 October 1950, while
service as a member of the Enlisted Reserve Corps, the applicant was
ordered to active duty.  It further shows that he served overseas for 8
months and 25 days and that his most significant assignment was to
Headquarters, 7th Infantry Division in Korea.  Item 3 (Grade-Rate-Rank and
Date of Rank) shows he held the rank of sergeant first class (SFC), which
he attained on 2 July 1951.

7.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and
Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214
shows he earned the Korean Service Medal (KSM) with 3 bronze service stars,
Republic of Korea Presidential Unit Citation (ROKPUC), and the Bronze Star
Medal (BSM) during the period of active duty covered by the separation
document, which was 19 October 1950 through 1 September 1951.  Item 29
(Wounds Received as a Result of Action with Enemy Forces) contains the
entry "None", and the applicant authenticated the DD Form 214 with his
signature in Item 48 (Signature of Person Being Separated) on 1 September
1951, the date of his release from active duty.

8.  The applicant provides a VA Rating Decision, dated 29 November 2006,
which shows that in 2005, he was granted service connection and a
disability ratings for "Osteoarthritis" of the left hand with favorable
ankylosis of index and middle finger due to cold injury; "Peripheral
Neuropathy" right upper extremity due to cold injury; and "Peripheral
Neuropathy" left upper extremity due to cold injury.  He includes medical
progress notes that indicate he has had "parasthesias since the 1950s after
Frostbite in Korea.”  The VA packet includes statements from the applicant;
however, it does not refer to military medical treatment records as a
source for confirming the circumstances under which he sustained the
medical conditions in question.

9.  During the processing of this case, a member of the Board staff
reviewed the Department of the Army (DA) Korean War Casualty Roster.  This
search failed to reveal an entry on this casualty list pertaining to the
applicant.

10.  Army Regulation 600-8-22 (Military Awards) prescribes the Army’s
awards policy.  Paragraph 2-8 contains guidance on awarding the PH.  It
states, in pertinent part, that each approved award of the PH must exhibit
all of the following factors: wound, injury or death must have been the
result of enemy or hostile act or international terrorist attack; the wound
or injury must have required treatment by medical officials; and the
records of medical treatment must have been made a matter of official Army
records.

11.  Award of the PH for frostbite injuries is currently prohibited;
however, until
23 August 1951, Army Regulation 600-45, which governed the award of Army
decorations, defined a “wound” as an injury to any part of the body from an
outside force, element, or agent sustained while in action against an armed
enemy or as a result of a hostile act of such enemy.  An “element” was
further defined as weather and the award of the PH to personnel who were
severely frostbitten while actually engaged in combat was authorized.
However, the basic verification requirements for award of the PH were the
same.  These requirements were and remain that in order to support award of
the PH there must be evidence that the wound for which the award is being
made was received as a result of enemy action; that the wound was treated
by military medical personnel, and a record of this medical treatment must
have been made a matter of official record.

12.  Paragraph 2-10 of the awards regulation contains guidance on the
National Defense Service Medal (NDSM).  It states, in pertinent part, that
it is authorized for any honorable active service during defined periods,
which includes the period between 27 June 1950 and 27 July 1954.

13.  Paragraph 9-5 of the awards regulation contains guidance on the United
Nations Service Medal (UNSM).  It states, in pertinent part, that it is
authorized for members who served in Korea between 27 June 1950 and 27 July
1954.  Personnel awarded the KSM automatically establish eligibility for
the UNSM.

14.  Paragraph 9-16 of the awards regulation provides guidance on the
Republic of Korea-Korean War Service Medal (ROK-KWSM).  It states, in
pertinent part, that it is authorized to members who served in Korea for
30 consecutive or 60 non-consecutive days, between 25 June 1950 and
27 July 1953.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to the PH based on the
frostbite he incurred while serving in Korea was carefully considered.
However, there is insufficient evidence to support his claim.
2.  By regulation, in order to support awarding a member the PH, it is
necessary to establish that a member was wounded or injured in action, that
the wound required medical treatment by military medical personnel, and
that the medical treatment was made a matter of official record.  The
applicant's 1 September 1951 DD Form 214 contains the entry "None" in Item
29, which indicates he was never wounded or injured as a result of enemy
action.  The list of earned awards in Item 27 does not include the PH, and
the applicant authenticated this document with his signature in Item 48 on
the date of his separation.  In effect, his signature was his verification
that the information contained on the DD Form 214, to include the Item 27
and Item 29 entries, was correct at the time the separation document was
prepared and issued.  Further, his name is not included on the Korean War
Casualty Roster, the official DA list of Korea battle casualties.

3.  The applicant’s claim that he suffers from cold weather related
injuries, as verified by the VA rating decision provided, is not in
question.  However, other than information related by him to the VA during
his claims processing, there is no evidence confirming that he was severely
frostbitten while actually engaged in combat or that his cold weather
injuries resulted from or were caused by enemy action.  Further, there are
no medical treatment records on file, and he has provided none showing he
was ever treated for severe frostbite while serving in Korea.  Lacking any
evidence to corroborate his claim of entitlement to the PH, it is concluded
that the regulatory burden of proof necessary to support award of the PH
has not been satisfied in this case.  As a result, granting the requested
relief would not be in the best interest of all those who served in the
Korean War and who faced similar circumstances.

4.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH now under consideration on 1 September
1951, the date of his release from active duty.  Therefore, the time for
him to file a request for correction of any error or injustice expired on
31 August 1954.  He failed to 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.

5.  The evidence does confirm that based on his active duty service and
service in Korea, the applicant is entitled to the NDSM, UNSM, and the ROK-
KWSM.  The omission of these awards from his separation document is an
administrative matter that does not require Board action.  Therefore, the
Case Management Support Division (CMSD), St. Louis, Missouri, will
administratively correct his record and separation document 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

___CG __  __RWS__  __KSJ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice related to award of the
Purple Heart.   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.

3.  The Board determined that administrative error in the records of the
individual concerned should be corrected.  Therefore, the Board requests
that the CMSD-St. Louis administratively correct the records of the
individual concerned to show his entitlement to the National Defense
Service Medal, United Nations Service Medal, and the Republic of Korea-
Korean War Service Medal; and by providing him a correction to his DD Form
214 that includes these changes.




                                  _____Curtis Greenway____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070002742                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/08/02                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1951/09/01                              |
|DISCHARGE AUTHORITY     |AR 615-363-6                            |
|DISCHARGE REASON        |Release to ERC                          |
|BOARD DECISION          |DENY with Note                          |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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