IN THE CASE OF:	  

		BOARD DATE:	  	  7 August 2008

		DOCKET NUMBER:  AR20080007722 


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.

2.  The applicant states he arrived in Pusan, Korea, in the summer of 1951.  He was sent up north for about two weeks, when he was informed of a goofup in his orders.  He was then sent down south to the 8th Army Advanced Headquarters.  He was in and out of there until late October of 1952.  In late October 1952, he went north to Panmunjom with a major, who was in explosive ordnance disposal. They went to an area that had butterfly mines dropped there by artillery canisters. The reason for the trip was to try to get him to reenlist and transfer to explosive ordnance disposal.  While there, they were hit with a mortar barrage.  He got hit in his lower left leg.  He was flown to the hospital south of Seoul.  The injury turned out to be minor, with one piece of shrapnel removed from the inside of his left knee.  He returned to duty in about two days.  

3.  The applicant states that he did not reenlist but chose to go home.  When they got to Japan, he challenged the records because they did not include his time on line or the injury to his leg.  He was told that the rest of his records would be forthcoming.  When he was processed for separation at Fort Custer, he was told the same thing.  For the next two years, he tried to get the updated records, without results.  The American Legion tried to help, and the answer was that when the records were microfilmed they would be sent.  Further inquiries resulted in an answer that they were no longer available.  The last answer they got was that his records had burned.  
4.  The applicant provides his DD Form 214 (Report of Separation from the Armed Forces of the United States) and a morning report, dated 20 October 1952.

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 Regular Army on 13 February 1951.  

4.  The applicant arrived in Korea on an unknown date.  His DD Form 214 shows he served 1 year, 5 months, and 3 days of foreign service.

5.  The applicant provided a morning report, dated 20 October 1952, that shows his duty status was changed from duty to sick in quarters.  

6.  The applicant was honorably released from active duty on 11 February 1953.  His DD Form 214 shows he was awarded the Korea Service Medal with “BCS” (i.e., bronze service star), the Meritorious Unit Commendation, and the United Nations Service Medal.

7.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) of the applicant’s DD Form 214 does not show that he was wounded.  His name is not listed on the Korean War Casualty Roster.

8.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been carefully considered.  Unfortunately, as he is aware, his records were presumably lost or destroyed in the 1973 fire at the National Personnel Records Center.

2.  The applicant provided a morning report entry to show his duty status was changed to sick in quarters on 20 October 1952.  However, that morning report does not indicate why he was placed sick in quarters.

3.  The applicant’s name does not appear on the Korean War Casualty Roster.  

4.  The applicant’s service medical records are not available.  If he ever sought treatment from the Department of Veterans Affairs, that agency might have his service medical records.  Those records might verify the circumstances of his injuries.

5.  Regrettably, without corroborating evidence such as affidavits from the major who was with him when his injuries were incurred (preferably) or from hospital personnel who treated him for his injuries or from other command-level personnel who were familiar with the circumstances of his injuries (secondarily), and preferably with evidence (such as DD Forms 214) from those individuals to verify they were in Korea at the time, there is insufficient evidence at this time to show the applicant met the eligibility criteria for award of the Purple Heart.

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)                                         AR20080007722





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ABCMR Record of Proceedings (cont)                                         AR20080007722



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