RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  05 February 2008
	DOCKET NUMBER:  AR20070013252 


	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. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Mr. Antonio Uribe

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.

2.  The applicant states, in effect, that he received gun shot wounds to his right leg. 

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States) with a separation effective date of 12 July 1954 and a copy of his Department of Veterans Affairs Decision Review Officer Decision dated 30 January 2003.

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 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 for the Board to conduct a fair and impartial review of this case.  The primary record available to this Board is the applicant’s DD Form 214.

3.  The available record shows the applicant enlisted on 25 July 1952.  His DD Form 214 of record does not show his military occupational specialty.

4.  The applicant's DD Form 214 with a separation effective date of 12 July 1954 shows he completed 1 year, 6 months, and 1 day of foreign and/or sea service.

5.  There are insufficient records to determine the units to which the applicant was assigned or the dates during which he was assigned.  Item 28 (Most Significant Duty Assignment) of the applicant's DD Form 214 shows he was assigned to Company A, 70th Tank Battalion (Japan).  This document does not show the dates of this assignment.

6.  On 12 July 1954, the applicant was released from active duty and transferred to the United States Army Reserve.  The DD Form 214 he was issued on this date shows he completed 1 year, 10 months, and 18 days of active federal service that was characterized as honorable.

7.  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.  Item 27 does show the applicant was awarded the National Defense Service Medal and the Good Conduct Medal.

8.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) of the applicant's DD Form 214 with a separation date of 12 July 1954 shows the entry "NA" for not applicable.

9.  The applicant's name is not listed on the Korean War Casualty File as receiving treatment for wounds received in action.

10.  The applicant provided as supporting evidence to his application a copy of his Department of Veterans Affairs (DVA) Decision Review Officer (DRO) Decision dated 30 January 2003.  This document shows that the DRO affirmed an earlier Veterans Affairs decision, which found the applicant was entitled to a 40 percent disability rating for a residual gun shot wound to his lower leg, the gastrocnemius muscle.  The second decision cited was a 10 percent disability rating for post-surgical repair of a torn right patella tendon.

11.  Army Regulation 672-5-1 (Military Awards), then in effect, provides, in pertinent part, that the Purple Heart is awarded to any member of an Armed Force or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. armed services has been wounded, killed, or who has died as a result of 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 by military medical personnel, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to award of the Purple Heart for gun shot wounds to his lower right leg.
2.  There is no entry in Item 29 (Wounds Received as a Result of Action with Enemy Forces) of the applicant's DD Form 214 with a separation effective date of 12 July 1954.  The applicant's name is not listed on the Korean War Casualty File as being wounded in action.  Due to a fire at the National Personnel Records Center in 1973, there are no available personnel or medical records for the Board to review with this application.  A requirement for award of the Purple Heart is medical treatment and the treatment must be documented in official military medical records.  Therefore, in the absence of substantiating medical evidence, there is insufficient evidence upon which to base award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__KLW__  __AU___  __RDG___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





____Kenneth L. Wright____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080205
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.