IN THE CASE OF:
BOARD DATE: 19 AUGUST 2008
DOCKET NUMBER: AR20080008716
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, correction of his records to show that he was wounded in action. He also requests award of the Purple Heart.
2. The applicant states that he would like to have the Purple Heart issued to him for wounds that he received in combat with the enemy. He states that he was with Company A, 2nd Division, 9th Regiment during Heart Break Ridge in 1951. He states that he was initially wounded by the enemy when a phosphorus shell exploded near his position and he received burns on his back. He states that he was treated by field medics. He states that the second time that he was wounded by the enemy he received shrapnel in his right wrist from a mortar round and that he was treated at a field hospital in Puh Son. The applicant concludes by stating that he was wounded twice by the enemy and that he was never awarded a Purple Heart for either incident.
3. The applicant provides in support of his application, a copy of his Report of Separation from the Armed Forces of the United States (DD Form 214).
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records are not available to the Board. This case is being considered using the DD Form 214, which was submitted by the applicant.
3. The available documentation shows the applicant was a member of the Army National Guard when he was called to active duty on 16 January 1951. He successfully completed his training as an infantry weapons leader.
4. After completing 1 year, 7 months and 1 day of net service this period, the applicant was honorably released from active duty (REFRAD) on 16 August 1952 and he was returned to state control to complete his remaining service obligation. The DD Form 214 he was furnished at the time of his REFRAD shows that he was awarded the Korean Service Medal w/two Bronze Service Stars, the United Nations Service Medal and the Combat Infantryman Badge.
5. Block number 29 on the applicant's DD Form 214 show "NA" in "Wounds Received as a Result of Action with Enemy Forces."
6. A review of the Korean Casualty List does not show the applicant was wounded as a result of hostile action while he was in the Army.
7. 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.
DISCUSSION AND CONCLUSIONS:
1. In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
2. The applicant's contentions have been noted. However, there is no evidence in the available documentation, nor has the applicant submitted any evidence to show that he was wounded in action and that he is entitled to the award of the Purple Heart.
3. The DD Form 214 that he furnished in support of his application shows "NA" in the block number 25, which should have reflected any wounds that he received as a result of hostile action. In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.
4. In view of the foregoing, there is no basis for granting the applicant's request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__XXX __ __XXX__ __XXX__ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
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.
___ 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) AR20080008716
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ABCMR Record of Proceedings (cont) AR20080008716
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