RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 October 2007
	DOCKET NUMBER:  AR20070005608 


	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. Antoinette Farley

Analyst

The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Mr. Chester A. Damian

Member

Mr. Ronald D. Gant

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 and the Combat Infantryman Badge.

2.  The applicant states, in effect, that he was wounded on 16 June 1953 near the 38th Parallel in Korea.  The applicant continues that he was treated for his injuries at the Osaka General Hospital, Japan.  The applicant adds two months later he was transferred to Camp Atterbury, Indiana, then Great Lakes Naval Station and finally to Fort Carson, Colorado.  The applicant concludes that he is an infantryman and should have been awarded the Combat Infantryman Badge. 

3.  The applicant provided copies of his DD Form 214, his medical records and an injury notification letter to his parents, dated 18 June 1953, in support of this application. 

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's service records are incomplete; however, his records show that he was inducted into the Army of the United States on 4 December 1952.  He completed basic training and advanced individual training and was awarded the military occupational specialty (MOS) 1745 (Light Weapons Infantryman).  The applicant's records show that he served in Japan during the period 15 May 1952 through 27 May 1953 and in Korea during the period 31 May 1953 through 18 June 1953.  

3.  The applicant's records show he was assigned to Company C, 7th Regiment of the 3rd Infantry Division in MOS 1745 (Rifleman) during the period 31 May 1953 through 16 June 1953 until he was admitted as a patient at Osaka Army Hospital on 18 June 1953. 
4.  The applicant's DD Form 214 (Report of Separation from the Armed Forces of the United States) shows that on 3 September 1954, he was honorably released from active duty and transferred to the United States Army Reserve Control Group (Annual Training) to complete his remaining service obligation.  The applicant's DD Form 214 also shows he completed a total of 1 year and 9 months of creditable Federal military service with no time lost and the highest rank he attained while serving on active duty was private two/pay grade E-2.  

5.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 does not show award of the Purple Heart or the Combat Infantryman Badge.  There are no orders in the applicant's service personnel records which show that he was awarded the Purple Heart or the Combat Infantryman Badge.  

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

7.  Item 42 of the applicant's DD Form 20 (Enlisted Qualification Record) does not show he was awarded the Purple Heart or the Combat Infantryman Badge.  

8.  The applicant's record contains a Combat Pay Claim Work Sheet dated 6 October 1954.  This form shows he was assigned to Company C, 7th Infantry Regiment during the period 4 June 1953 through 16 June 1953.  The remarks section of the Combat Pay Claim Work Sheet shows that the applicant was hospitalized from 16 June 1953 to 2 June 1954 (non-battle).  

9.  The applicant's record contains his inquiry letter, dated 29 March 1955, to the Adjutant General of the Department of the Army.  The letter shows the applicant submitted an application, dated 13 September 1954, for additional combat pay based on his Korean service.  The letter also shows the applicant acknowledged receiving a Treasury Voucher for combat pay for one month [only] in the amount of $45.00.  Further, the letter shows the applicant requested that his file be checked to see if an error was made in the amount of combat pay he was entitled to receive based on being wounded in action in Korea, time spent in the hospital, and for the time prior to being wounded.  






10.  The applicant's record contains a letter from the Adjutant General of the Department of the Army, dated 3 May 1955, in response to the applicant's request for additional combat pay.  The letter shows that based on the Combat Duty Pay Act of 1952, combat pay was provided to individuals who were members of military units in Korea that qualified as combat units for six days during a month.  The Act provided that individuals who were injured or wounded in action in Korea were entitled to receive combat pay for the month of the injury or wound and during three calendar months following the month in which the injury occurred or until hospitalization was terminated, whichever was earlier.  An individual could not receive combat pay under more than one of these qualifications for the same month.  The letter shows that during the month of June 1953, Company C, 7th Infantry Regiment was designated as a combat unit, as defined in the Combat Duty Pay Act of 1952.  The letter further shows the Adjutant General determined the applicant’s service in Korea met the requirements for combat pay for one month.  Inasmuch as the records show that he was hospitalized as a non-battle casualty on 16 June 1953, his claim for additional combat pay was denied.

11.  The applicant's name is not listed on the Korean Casualty Roster for injuries sustained as a result of hostile action while in Korea.

12.  The applicant provided a letter from Headquarters, Osaka Army Hospital 8009th Army Unit, Japan, dated 8 July 1953, which informed his parents that he was admitted to the hospital as a patient on 18 June 1953.  The letter indicated that the applicant was wounded as a result of an accident.

13.  The applicant provided an AFFE Form 241 (Report of Battle Casualty or Non-Battle Loss), dated 22 August 1953.  The report shows that the applicant was admitted to Osaka Army Hospital, Japan, on 18 June 1953.  The report further shows in item 14 (Circumstances, Diagnosis and Remarks) that on 16 June 1953, he was wounded by a missile, gunshot, perforating, his left thigh, no artery or nerve involvement when a carbine operated by another enlisted man accidentally discharged while being cleaned.  The applicant was also diagnosed with a fracture, compound, comminuted, upper third, left femur, and no artery or nerve involvement.  

14.  The applicant provided a Standard Form 502 (Narrative Summary) which indicates he sustained a compound, comminuted fracture of the upper third, left femur on 16 June 1953, as a result of bullet wounds sustained in action against an organized enemy.  This form was signed by a medical corps officer and dated 
26 May 1954.

15.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against and enemy or 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 are no time limitations for requests for award of the Purple Heart.

16.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and procedures concerning awards.  Paragraph 8-6 provides for award of the Combat Infantryman Badge.  That paragraph states that there are basically three requirements for award of the Combat Infantryman Badge.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.  Specific requirements state, in effect, that an Army enlisted Soldier must have an infantry specialty, satisfactorily performed duty while assigned or attached as a member of an infantry unit of brigade, regimental, or smaller size during any period such unit was engaged in active ground combat.  A recipient must be personally present and under hostile fire while serving in an assigned infantry primary duty, in a unit actively engaged in ground combat with the enemy.

17.  Review of the applicant's records indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

18.  Army Regulation 600-8-22 (Military Awards) states that the Republic of Korea War Service Medal is awarded to members of the U.S. Armed Forces who served in Korea and adjacent waters between 25 June 1950 and 27 July 1953.  The service prescribed must have been performed as follows:  
(1) while on permanent assignment;
(2) while on temporary duty within the territorial limits of Korea or on waters immediately adjacent thereto for 30 consecutive days or 60 nonconsecutive days; or 
(3) while as crew members of aircraft, in aerial flight over Korea participating in actual combat operations or in support of combat operations. 

19.  Army Regulation 600-8-22 (Military Awards), in pertinent part, authorizes award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal.
20.  The applicant's records show he participated in three campaigns during his service in Korea:  the Korea Summer-Fall 1952, the Third Korean Winter, and the Korea Summer 1953.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to award of the Purple Heart due to injuries sustained during his service in Korea in June 1953, and award of the Combat Infantryman Badge based on his MOS. 

2.  There are no general orders that show the applicant was awarded the Purple Heart.  

3.  The applicant's records clearly show that he sustained wounds as a result of another Soldier cleaning his weapon which accidentally discharged and hit the applicant.  The applicant was not involved in hostile action at the time of the injury nor was the wound a direct result of contact with an enemy force.  As a result there is no basis to grant award of the Purple Heart in this case.

4.  The applicant contends that he is entitled to award of the Combat Infantryman Badge.

5.  There is no evidence in the available records and the applicant has not provided sufficient evidence showing that he was awarded the Combat Infantryman Badge.

6.  Records show the applicant was awarded an infantry MOS.  However, there is no evidence that the applicant served in an infantry duty position in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size, all of which are required by regulation for award of the Combat Infantryman Badge.  Based on the foregoing, there is insufficient evidence upon which to base award of the Combat Infantryman Badge in this case.

7.  Records show the applicant served a qualifying period of service for award of the Republic of Korea War Service Medal.  Therefore, the applicant is entitled to award of the Republic of Korea War Service Medal and correction of his records to show this foreign award.

8.  Records show that the applicant was awarded the Korean Service Medal with one bronze service star.  Evidence shows that he participated in three campaigns during his service in Korea.  Therefore, he is eligible for award of two additional bronze service stars to be affixed to his already-awarded Korean Service Medal. 
9.  Evidence shows that the applicant’s records contain an 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 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___CD __  __CAD__  __RDG __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 or the Combat Infantryman Badge.

2.  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 War Service Medal and two additional bronze service stars to be affixed to his already-awarded Korean Service Medal with one bronze service star.




_____Carmen Duncan____
          CHAIRPERSON




INDEX

CASE ID
AR20070005608
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.