IN THE CASE OF:	  

	BOARD DATE:	  26 June 2008

	DOCKET NUMBER:  AR20080006430 


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, in effect, that he be awarded the Purple Heart for wounds and injuries received in action in Korea on 1 December 1950 and that his DD Form 214 be corrected to reflect the correct period he served on active duty. 

2.  The applicant states, in effect, that he was captured by the three Chinese Soldiers near Kunuri on 28 November 1950 along with another Soldier and remained a prisoner of war (POW) until they escaped and returned to friendly forces.  On 1 December 1950 he was wounded and injured as a result of enemy action in Pyongyang and was transferred to the 118th Station Hospital in Japan for treatment.  However, he was never awarded the Purple Heart for his wounds and injuries. 

3.  The applicant provides a copy of his DD Form 214, a copy of the Western Union Telegram to his father notifying him of his injuries and capture by the enemy, a copy of his Department of Veterans Affairs (VA) Rating Decision, a medical document dated 3 January 1951 indicating that he had a crushing injury to his lower back, a statement (AFFIDAVIT) he was issued on 8 January 1951 relating to his capture and injury, and medical progress notes from his records relating to his injury and treatment. 






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 was inducted on 9 August 1949.  He completed his training as a heavy weapons infantryman and was assigned to the 38th Infantry Regiment, 2nd Infantry Division at Fort Lewis, Washington.  He deployed with his unit to Korea on 23 July 1950.

4.  On 28 November 1950, while serving in the rank of private first class (PFC), the applicant was captured near Kunu-ri by Chinese Soldiers and held captive until he escaped shortly thereafter and returned to friendly forces.  On
1 December 1950, near Pyongyang, North Korea, the applicant was injured when a jeep he was riding in overturned and he was pinned underneath and sustained injuries to his lower back and legs.  He was evacuated for medical treatment. 

5.  A Western Union Telegram was subsequently dispatched to the applicant’s father explaining that the applicant had been captured, but had returned to military control and was subsequently injured on 1 December 1950.

6.  On 8 January 1951, while in the 128th Station Hospital in Japan, the applicant issued an AFFIDAVIT explaining his capture and his injury. 



7.  The DD Form 214 provided by the applicant reflects that he was honorably discharged on 8 August 1950; however, it appears that that form is in error because there is other information in the available records to show that he was discharged on 27 October 1951.  This is further supported by the fact that the DD Form 214 contains and entry in block 29 (Wounds Received as a Result of Action with Enemy Forces) showing that the applicant received shrapnel wounds to the back in Korea on 1 December 1950.  It also indicates that he was advanced to the rank of PFC in September 1950, and that his allotment was discontinued on 31 August 1951.  His next allotment premium was due on 30 September 1951.  The applicant was discharged on temporary service records and an affidavit from the applicant.

8.  A review of the Korean War Casualty Roster confirms that the applicant was reported as being returned to military control and wounded on 1 December 1950.

9.  On 13 October 1993, the Army Reserve Personnel Center in St. Louis, Missouri, issued a DA Form 1577 authorizing the issuance of medal sets to the applicant for awards of the POW Medal, the Good Conduct Medal, the National Defense Service Medal, the Korean Service Medal with one bronze Service Star, the Combat Infantryman Badge, and the United Nations Service Medal.  There is no evidence that those awards were ever added to his DD Form 214. 

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

11.  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.  Although the specifics of the applicant’s wound cannot be verified, the evidence of record clearly shows that he was wounded on 1 December 1950 and that he was reported as a casualty on that date.  Accordingly, he is entitled to be awarded the Purple Heart for his wounds.

2.  Subsequent to the applicant’s discharge, the ROKWSM was authorized and the applicant is also entitled to be awarded that medal for his service in Korea during the Korean War.  Additionally, all of his awards should be entered on his DD Form 214.

3.  Additionally, the applicant’s DD Form 214 shows that he was discharged on 8 August 1950, which is obviously in error when viewing the other entries on the DD Form 214 that contain dates subsequent to that date.  Accordingly, his DD Form 214 should be corrected to show that he was discharged on 27 October 1951 and that he served 2 years, 2 months and 19 days of total active service.  

BOARD VOTE:

__XXX __  __XXX__  __XXX__   GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

 	a.  awarding him the Purple Heart for wounds received in action against the enemy in Korea on 1 December 1950.

	b.  awarding him the ROKWSM and showing his awards of the POW Medal, the Good Conduct Medal, the National Defense Service Medal, the Korean Service Medal with one bronze Service Star, the Combat Infantryman Badge, the United Nations Service Medal; and by correcting his DD Form 214 to show that he was discharged on 27 October 1951 and that he served 2 years, 2 months and 19 days of total active service.
2.  The Board wants the applicant and all others to know that the sacrifices he made in service to the United States during the Korean War are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms.



      ___        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)                                         AR20080006430



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ABCMR Record of Proceedings (cont)                                         AR20080006430



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