IN THE CASE OF:	  

		BOARD DATE:	       14 August 2008

		DOCKET NUMBER:  AR20080005315 


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 award of the Purple Heart.  He also requests award of the Bronze Star Meal.

2.  The applicant states that he turned down the Purple Heart in February 1952.  He was in a bunker with six other men.  The enemy threw a hand grenade into the bunker and the concussion blew him out the door, facing two enemy soldiers. He reached back into the bunker, got a BAR (Browning Automatic Rifle), and shot them.  His buddies had been hit, so he ran to the command post for help.

3.  The applicant states that he did not know he had been hit until it was over and his ankle started hurting.  The company medic, whose name he does not remember, tried to pick it (shrapnel) out but it was too deep.  The medic said he would be glad to write the applicant up for Purple Heart, but he refused it because he was concerned about his mother, who had nerve problems.  The shrapnel did not show up again until five years later in 1956, when he was working on an oil rig.  His foot began to hurt.  He took his pocket knife and dug through the blood and pus until the shrapnel popped out.  

4.  The applicant states that he received a Letter of Commendation for action that occurred in October 1952.  Private First Class L___ slipped off a rocky ledge and broke his back.  A volunteer force that included him (the applicant) took Private First Class L___ by litter to an ambulance behind their tanks.  They were walking in the middle of the river to avoid land mines when they walked up to within        

10 feet of a squad of Chinese.  They had to drop the litter and defend themselves.  The applicant states he killed three of them.  He then picked up Private First Class L___ and carried him on his back two hundred yards through freezing, waist-deep water.  The lieutenant with them got a Silver Star, and the two sergeants got Bronze Star Medals.  He was a corporal at the time and got the Letter of Commendation, but he believes he should have been awarded the Bronze Star Medal, too.

5.  The applicant stated he provided affidavits from the men who were working with him on the oil rig who witnessed his taking the shrapnel out of his foot; however, no affidavits were provided with his application.

6.  The applicant provided his DD Form 214 (Report of Separation from the Armed Forces of the United States); his National Guard Bureau (NGB) Form     22 (Report of Separation and Record of Service); an NGB Form 23 (Retirement Credits Record); and two Service and Qualification Records.

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 remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.  

3.  The applicant enlisted in the Army National Guard on 6 September 1949.


4.  On 16 January 1951, the applicant was called to active duty.  He was assigned to Company A, 32d Infantry Regiment, in Korea, on or about                  4 September 1951.

5.  An entry on the Company A, 32d Infantry Regiment, morning report for          21 February 1952 states that 1st and 2d platoons were engaged by the enemy on 18 February 1952.  Friendly casualties were light, but the names of the casualties were not listed.

6.  The applicant departed Korea on an unknown date.  He was released from active duty on 15 January 1953.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) on his DD Form 214 contains the entry, “None.”  His DD Form 214 shows he was awarded the Combat Infantryman Badge, the United Nations Service Medal, and the Korean Service Medal with two bronze service stars.

7.  The applicant’s service medical records are not available.  His name is not listed in the Korean Casualty Files.

8.  The applicant was honorably discharged from the Army National Guard on   29 November 1954 and transferred to the U. S. Army Reserve to complete his remaining service obligation.

9.  The historical files of the 32d Infantry Regiment at the National Archives in College Park, MD, were reviewed.  The review failed to provide documentation showing the names of the Soldiers who were wounded on 18 February 1952.

10.  Army Regulation 600-8-22 (Military Awards) states 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.

11.  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.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.


12.  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 a 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 imitations 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.  Unfortunately, at this late date there is no evidence of record available that might corroborate the applicant’s contention that he was wounded as a result of enemy action or that he was treated for such wounds.  Regrettably, there is insufficient evidence that confirms that the applicant met the eligibility criteria for award of the Purple Heart.

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

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 wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by him in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      ________xxxx__________
               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)                                         AR20080005315



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ABCMR Record of Proceedings (cont)                                         AR20080005315



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