IN THE CASE OF:	  

		BOARD DATE:	        24 July 2008

		DOCKET NUMBER:  AR20080008930 


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 that he sustained a wound to his forehead while supporting the French during the Korean War.

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  DD Form 214 (Report of Separation From the Armed Forces of the United States), dated 18 November 1952:

	b.  Honorable Discharge Certificate, dated 29 January 1957.

	c.  Self-authored letter, dated 19 January 2007.

	d.  Pathology Report, dated 29 February 2006. 

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's DD Form 214 shows that he entered active duty in New York City, New York, on 19 February 1951, in the rank/grade of private (PVT)/E-1 and that he was trained in military occupational specialty (MOS) 1795 (Tank Ammunition Specialist).  This form also shows he served with the Tank Company of the 38th Infantry Regiment.

4.  The applicant’s DD Form 214 further shows that he completed 1 year and 9 months of creditable military service, 9 months and 27 days of which was foreign service.  He was honorably separated in the rank/grade of sergeant first class (SFC)/E-6 (T) and transferred to the U.S. Army Reserve Control Group on 18 November 1952. 

5.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 shows he was awarded the Combat Infantryman Badge, the United Nations Service Medal, and the Korean Service Medal with one bronze service star.  Item 27 does not show award of the Purple Heart.

6.  Item 29 (Wounds Received As a Result of Action with Enemy Forces) of the applicant’s DD Form 214 shows the entry “None.” 

7.  The applicant’s constructed records do not contain General Orders awarding him the Purple Heart.

8.  The applicant's medical records are not available for review with this case.

9.  The applicant’s name is not shown on the Korean Casualty File.


10.  In his self-authored statement, the applicant states that he served in Korea from July 1951 to April 1952 and that he was wounded by enemy fire while assigned to the 4th Platoon, 38th Tank Company, 38th Infantry Regiment, 2nd Infantry Division.  On or about the middle of September 1951, his tank was hit by enemy mortar fire and was disabled (lost track), when a piece of shrapnel from the mortar round entered the tank through the machine gun opening and hit him in the forehead.  His tank commander helped stop the bleeding and bandaged the wound.  When enemy fire stopped, they repaired the tank and left the area to support other troops that were fighting.  

11.  The applicant submitted a copy of his pathology report, dated 29 February 2006, submitted by the Associates in Dermatology, Orlando, Florida.  In this report, the medical doctors remarks that the applicant was diagnosed and treated for a surgical defect which is the result of an excision of a Basel Cell Carcinoma involving the forehead superior.      

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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, and the medical treatment must have been made a matter of official record.  This regulation further states that there is no time limit on submission of requests for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

There are no general orders that show the applicant was awarded the Purple Heart and there is no evidence in his service personnel records that shows that he was wounded or injured as a result of hostile action or treated for such wounds.  In the absence of documentation that shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case.

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.



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      _______ _   _______   ___
               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)                                         AR20080008930



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ABCMR Record of Proceedings (cont)                                         AR20080008930



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