RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 March 2008
	DOCKET NUMBER:  AR20070013299 


	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.


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	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 he be awarded the Purple Heart.

2.  The applicant states, in effect, that he was wounded while serving in battle defending Hill 191 near Tumyong-dong, Korea, on 14 June 1952.  He states he earned the Purple Heart and his record should be amended to show this fact.

3.  The applicant submitted those documents that are identified as Enclosures 
1-7 appended to a letter written to the US Army Human Resources Command, Alexandria, Virginia, dated 20 September 2006, in behalf of the applicant, by a major general.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be awarded the Purple Heart.

2.  Counsel states, in effect, the applicant believes he is entitled to the Purple Heart and was not previously awarded it because of insufficient evidence in his military records.  Counsel asks the Board to please note that the evidence of record was sufficient to warrant service-connection for shrapnel wounds.  She concludes by respectfully asking the Board to review the information, exercise the same compassion, in effect, that the Department of Veterans Affairs (VA) exercised in awarding this brave human being and gentleman the Purple Heart.

3.  Counsel submitted no additional document in support of the applicant's request, beyond those specified in paragraph 3, in the section above.

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 were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from reconstructed records and from alternate sources.

3.  The applicant's available military record shows he was inducted into the Army of the United States on 17 January 1951.  He was honorably released from active duty and transferred to the Enlisted Reserve Corps in the rank of Sergeant, on 20 November 1952, under the provisions of Service Regulation 615-363-5, prior to the expiration of his term of service.  On the date of his release from active duty, the applicant had completed 1 year, 10 months and 4 days active military service, with no evidence of any time lost.

4.  Item 26 (Foreign and/or Sea Service), of the applicant's DD Form 214, shows he served 1 year, 1 month and 26 days foreign service.  The specific date of arrival and the date of his departure from Korea are not available for the Board's review.

5.  Item 28 (Most Significant Duty Assignment), of the applicant's DD Form 214, shows his most significant assignment was Company L, 180th Infantry Regiment, 45th Infantry Division.

6.  The applicant's DD Form 214 shows he was awarded the Bronze Star Medal, with "V" Device; the Korean Service Medal, with two bronze service stars; the United Nations Service Medal; the Combat Infantryman Badge; and one overseas service bar.  No other awards or decorations are shown on his DD Form 214.

7.  The applicant was awarded the Bronze Star Medal, with "V" Device, by General Orders 216, Section II, prepared by Headquarters, 43rd(sic) Infantry Division, on an unknown date (but identified as 30 June 1952 on the "Enclosures" list [enclosure 5] by the major general who previously served as an advocate for the applicant).  In the citation which was submitted, it states, the applicant was cited for heroism in action against an armed enemy near Tumyong-dong, Korea, on 14 June 1952.

8.  On 17 October 2006, the applicant's Member of Congress (MOC) inquired the US Army Human Resources Command, Alexandria, about an award of the Purple Heart for the applicant based on his having been wounded in Korea during the Korean War.

9.  On 25 October 2006, the US Army Human Resources Command, Alexandria, notified the applicant's MOC of the criteria for award of the Purple Heart.  They notified him that a review of historic awards records for the Korean War era for 

the 180th Infantry Regiment, 45th Infantry Division, had been conducted and no general orders awarding the applicant the Purple Heart had been found.  A review of the Surgeon General's hospital admission records also showed no record of any treatment for any battle-related injury the applicant may have sustained.  US Army Human Resources Command operating personnel stated that unfortunately, a VA finding of service-connection for a disability, or disabilities, was insufficient evidence for entitlement to the Purple Heart because not all service-connected disabilities are the result of enemy action.  Medical documentation showing wounds or injuries received as the result of enemy action was required.  Without evidence he was treated for injuries received as a result of enemy action and these injuries were made a matter of official record, award of the Purple Heart could not be authorized.

10.  In the same notice, US Army Human Resources Command operating personnel advised the applicant through his MOC about procedures to follow in seeking a morning report search or a search of other unit files and reviewing these documents for possible information/documentation concerning injuries which could substantiate an award of the Purple Heart to him.  There is no evidence the applicant has followed this advice.

11.  On 26 October 2006, the US Army Human Resources Command, Alexandria, verified the applicant's entitlement to the Republic of Korea War Service Medal and the National Defense Service Medal.  A DD Form 215, Correction to DD Form 214, Certificate of Release or Discharge from Active Duty, was prepared to add these awards to the applicant's DD Form 214, Report of Separation from the Armed Forces of the United States.

12.  Department of the Army Pamphlet 672-1, Unit Citation and Campaign Participation Credit Register, dated 6 July 1961, shows the unit the applicant was assigned to, Company L, 180th Infantry Regiment, 45th Infantry Division, was awarded the Republic of Korea Presidential Unit Citation, for the period 10 December 1951 through 31 July 1953, by Department of the Army General Orders (DAGO) Number 30, dated 1954.  As evidenced by the citation for award of the Bronze Star Medal, with "V" Device, to the applicant, he was present for duty with this unit during the period for which the unit was cited for award of the Republic of Korea Presidential Unit Citation.  This unit award is not shown on his DD Form 214, he is entitled to this unit award, and it has not previously been added to his DD Form 214.

13.  Item 29 (Wounds Received as a Result of Action with Enemy Forces), of the applicant's DD Form 214, has the word, "None."

14.  The applicant provided a copy of a VA Rating Decision, dated 3 May 2005, which shows he was granted a 10 percent service-connected disability for residuals of cold injury, right lower extremity; a 10 percent service-connected disability for residuals of cold injury, left lower extremity; a 0 percent service-connected disability for bilateral hearing loss; a 0 percent service-connected disability for shrapnel wounds, left leg, and a 0 percent service-connected disability for shrapnel wounds, right leg.  He was denied service-connection for posttraumatic stress disorder; tinnitus; and residuals, shrapnel wound to the right eye.

15.  The VA Rating Decision the applicant provided in support of his request, shows that in arriving at its decision, in each service-connection consideration given him, for each of the above reported disabilities, the VA plainly stated, "No service medical records were available for review."

16.  Title 38, United States Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active service.  Service connection may be granted for a disability which began in military service or was caused by some event or experience in service.

17.  AR 670-1, chapter 29, prescribes policy and guidance for wear of U.S. and foreign unit awards.  This regulation states that a Soldier may wear the unit award permanently if the individual was assigned to, and present for duty with the unit any time during the period cited; or was attached by competent orders to, and present for duty with the unit during the entire period, or for at least 30 consecutive days of the period cited.

DISCUSSION AND CONCLUSIONS:

1.  To be awarded the Purple Heart, substantiating evidence must be presented to show that the Soldier was wounded as the result of hostile action, the wound must have required medical treatment by military medical personnel, and the medical treatment must have been made a matter of official record.

2.  Historic award records for the applicant's unit, the 180th Infantry Regiment, 45th Infantry Division, were reviewed for general orders awarding him the Purple Heart.  No orders were found.

3.  A review of the Surgeon General's hospital admission records was conducted for any evidence the applicant was treated or hospitalized for any wounds or injuries he may have sustained during the Korean War.  No hospital admission records were found.

4.  The applicant provided no additional documents, such as morning reports, unit status reports, duty journals, or personal medical records prepared at the time of his service during the Korean War which might have shown or provided an indication he was treated for wounds or injuries received as a result of enemy action.

5.  The applicant's DD Form 214 shows no award of the Purple Heart in Item 28. The separation document shows the entry "None" in Item 29.  The applicant signed the DD Form 214 in his own hand in the appropriate space on the date of his separation from the Army attesting that the information recorded on the form was, to the best of his knowledge, accurate and complete.  Therefore, based on the available evidence in this case, he is not entitled to award of the Purple Heart and to have it added to his DD Form 214.

6.  The applicant applied to VA for service-connected disability compensation and benefits on 28 October 2004, nearly 52 years after his release from active duty.  He was awarded service-connected compensation for disabilities, including 0 percent ratings for his service-connected disability for shrapnel wounds, left leg, and for shrapnel wounds, right leg.  As indicated in the VA Rating Decision the applicant provided in support of his request, the VA's decisions regarding his service-connected disabilities were made without the benefit of being able to review the service member's service medical records.

7.  In accordance with governing laws, the VA is the Department responsible for compensating veterans when service-related conditions cause social or industrial impairment after a Soldier's discharge.  Any rating action by the VA does not necessarily demonstrate error or injustice on the part of the Army.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit and uses a different standard for evaluating an applicant's entitlement/eligibility for compensation and other benefits than do the military departments.

8.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

9.  The evidence does show that the applicant served in a unit, which was awarded the Republic of Korea Presidential Unit Citation while he was a member of the unit.  This unit award is not shown on his DD Form 214.  He is entitled to this unit award and to have it added to his DD Form 214 at this time.

10.  Evidence shows that the applicant’s records contain 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

__x_____  _x _  _x_____  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.

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 award the applicant the Republic of Korea Presidential Unit Citation and to add this unit award to his DD Form 214 at this time.




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          CHAIRPERSON



INDEX

CASE ID
AR20070013299
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
Denial with Note
REVIEW AUTHORITY

ISSUES         1.
107.0000
2.
107.0015
3.

4.

5.

6.