RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	 15 November 2007 
	DOCKET NUMBER:  AR20070009445 


	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. Judy L. Blanchard

Analyst

The following members, a quorum, were present:


Ms. Margaret K. Patterson

Chairperson

Mr. Larry C. Bergquist

Member

Mr. Dale E. DeBruler

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, that her late husband, the Former Service Member (FSM), be awarded three Purple Heart Awards.   

2.  The applicant states, in effect, the FSM should have three Purple Heart Awards but no record can be found.  She states that she pulled out small pieces of shrapnel from the FSM’s back for years, but she did not save them and did not know to save them.  She adds that the family would also be grateful for one PH.  

3.  The applicant provides the FSM’s Report of Separation from the Armed Forces of the United States (DD Form 214), a statement from a fellow Soldier, and the FSM’s Certificate of Death in support of her 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 FSM’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 primarily the FSM’s separation document (DD Form 214).

3.  The FSM’s DD Form 214 shows that he enlisted in the Army and entered active duty on 5 August 1949.  This document further shows that he served overseas for 9 months and 19 days, and that he earned the Korean Service Medal with 1 bronze service stars, the Korean Presidential Unit Citation, and one Overseas Service Bar.

4.  Item 29 of his DD Form 214 (Wounds Received as a Result of Action with Enemy Forces) contains the entry “None” and the FSM authenticated the DD Form 214 with his signature in Item 48 (Signature of Person Being Separated).  There are no orders in the available record and there is no evidence that the FSM was wounded or treated for wounds as a result of hostile action.  

5.  The FSM’s DD Form 214 also shows that he was honorably separated on 
5 May 1952 after completing a total of 2 years, 9 months, and 1 day of active duty service.  The DD Form 214 he was issued at the time shows he held the rank of Sergeant.  

6.  The applicant provides a third-party statement from a fellow member of the FSM’s organization in Korea.  This individual claims that he saw the FSM and another Soldier go down a hill to receive medical attention, as they were hit by shrapnel.  He does not know if they were treated by a corpsman or went to an Aid Station. 

7.  Army Regulation 600-8-22 (Military Awards) prescribes the Army’s awards policy.  Paragraph 2-8 contains guidance on awarding the Purple Heart.  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 military medical personnel; and the records of medical treatment must have been made a matter of official Army records.

8.  A review of the applicant's military service records reveals that he may be entitled to additional awards that are not shown on his DD Form 214.

9.  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.

10.  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. 

10.  Army Regulation 600-8-22 (Military Awards) states that the Republic of Korea War Service Medal (ROKWSM) 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that her late husband the FSM is entitled to three Purple Heart awards and the supporting third party statement that was submitted with her application were carefully considered.   However, by regulation, in order to support award of the Purple Heart, there must be evidence a member was wounded/injured in action, was treated for the wound/injury by military medical personnel and a record of this medical treatment must have been made a matter of official record.  

2.  The sincerity of the applicant’s claim that the FSM was injured while serving in Korea and of the supporting third-party statement is not in question.  However, absent any evidence of record to corroborate the information contained in the third-party statement and/or to confirm the FSM’s injury/injuries was the direct result of or caused by enemy action, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  Therefore, the request for the Purple Heart awards must be denied in the interest of all those who served during the Korean War and who faced similar circumstances.  

3.  Further, the DD Form 214 issued to the FSM upon his separation on 5 May 1952 did not include the Purple Heart in the list of authorized awards.  The FSM authenticated this DD Form 214 with his signature, thereby verifying that the information it contained, to include the list of awards, was correct at the time the document was prepared and issued.  

4.  However, the evidence of record does show that based on the FSM’s active duty service and service in the Republic of Korea, he is entitled to the NDSM, UNSM, and the ROKWSM.  Therefore, it would also be appropriate to add these awards to the FSM’s reconstructed record and separation document at this time.  

5.  Evidence shows that the applicant’s reconstructed record contains administrative errors 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

__MKP __  __LCB __  __DED __ 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.  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 the FSM’s entitlement to the National Defense Service Medal, United Nations Service Medal, and the Republic of Korea War Service Medal; and by providing the applicant a correction to the FSM’s separation document that includes these changes.




___Margaret K. Patterson___
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/11/15
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY with note
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.

2.

3.

4.

5.

6.