IN THE CASE OF:	  

	BOARD DATE:	  22 May 2008

	DOCKET NUMBER:  AR20080003729 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his DD Form 214 (Report of Separation from the Armed Forces of the United States), with the ending period 25 August 1951, be corrected to show award of the Purple Heart and the Bronze Star Medal. 

2.  The applicant states that he was wounded in combat and put in for award of the Purple Heart but never received it.  He further states that he was awarded the Bronze Star Medal and a copy of the citation was sent to his parents in 1951 and it is not reflected on his DD Form 214.

3.  The applicant provides his DD Form 214; a Standard Form (SF) 180 (Request Pertaining to Military Records) dated 29 May 2007; a memorandum from the National Personnel records Center, dated 14 February 2008; and an SF 88 (Report of Medical Examination), dated 22 August 1951. 

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, this case is being considered using reconstructed records, which primarily consist of his DD Form 214 and SF 88.

3.  The applicant's DD Form 214 with the period ending 25 August 1951 shows he entered active duty on 17 September 1950.  On 25 August 1951, the applicant was released from active duty after completing 11 months and 9 days of creditable active service

4.  Item 27 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows award of the Combat Infantryman Badge, the Korean Service Medal with one bronze service star, and the Silver Star.

5.  Item 30 (Wounds Received as a Result of Action with Enemy Forces) shows the entry "NONE."

6.  There are no orders in the applicant's records that show he was awarded the Purple Heart or the Bronze Star Medal.  The applicant's name is not listed on the Korean Casualty Roster for receiving wounds.

7.  The applicant provided an SF 88, dated 22 August 1951, indicated that during his separation physical he had right eye damage "not correctable" due to injury received in combat while in Korea. 

8.  The applicant's Army Medical Treatment Records are unavailable.

9.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for 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 medical personnel, and the medical treatment must have been made a matter of official record.  When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.  

10.  Army Regulation 600-8-22 provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.

11.  Army Regulation 600-8-22 provides for award of the United Nations Service Medal.  In pertinent part, the regulation states that the period of eligibility for the United Nations Service Medal was between 27 June 1950 and 27 July 1954.  The regulation provides that this service medal was awarded to members of the Armed Forces of the United States dispatched to Korea or adjacent areas on behalf of the United Nations.  Award of the Korean Service Medal automatically establishes eligibility for award of the United Nations Service Medal.

12.  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. 

13. Army Regulation 600-8-22 (Military Awards) as amended provides that the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 through 27 July 1954, 1 January 1961 through 14 August 1974, 2 August 1990 through 30 November 1995, and 11 September 2001 to a date to be determined.   

14.  Title 10 of the United States Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to award of the Purple Heart because of injuries received during his tour of combat service in Korea.

2.  There are no orders in the applicant's service personnel records that show he was awarded the Purple Heart.  The medical documentation provided by the applicant stated he had war injuries; however, the medical examination completed at the time of his separation does not show that these injuries were a result of hostile action and not some accident.

3.  In the absence of military records which show the applicant was wounded or treated for wounds as a result of hostile action, there is an insufficient basis for award of the Purple Heart in this case.

4.  There are no orders in the applicant's service personnel records that show he was awarded the Bronze Star Medal.  There is no evidence in the available records and the applicant has not provided evidence that shows he was awarded the Bronze Star Medal for heroism or for meritorious achievement or service.  There is insufficient evidence to warrant adding the Bronze Star Medal to his DD Form 214.

5.  While the available evidence is insufficient for awarding the applicant a Bronze Star Medal, this in no way affects the applicant’s right to pursue his/her claim for the Bronze Star Medal by submitting a request through his/her Member of Congress under the provisions of 10 USC 1130.

6.  The applicant met the eligibility criteria for award of the Republic of Korea War Service Medal, the United Nations Service Medal, and the National Defense Service Medal.  Therefore, his DD Form 214 should be amended to add these awards.

7.  Evidence shows that the applicant’s records contain administrative errors which do 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

__xx ___  ___xx __  ___xx __  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 an 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 add award of the Republic of Korea War Service Medal, the United Nations Service Medal, and the National Defense Service Medal to his DD Form 214 with the period ending 25 August 1951.



      ___             xxx ___
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080003729



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ABCMR Record of Proceedings (cont)                                         AR20080003729



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