IN THE CASE OF:	  .

		BOARD DATE:	  23 September 2008

		DOCKET NUMBER:  AR20080010071 


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, in effect, that he was told by a captain at the field hospital in North Korea that he would receive the Purple Heart because of his injury on or about 10 February 1951.  He believes he should be awarded the Purple Heart for the time that he spent in the hospital and the pain that he has sustained as a result of the injury.  After 55 years, he still suffers from pain in his left leg.  His left leg is pinned from the knee to the ankle.  He is also deaf in his right ear from pulling the cord on an eight inch artillery gun in Korea. 

3.  The applicant also states, in effect, that all of his family has served in the military, his dad served in World War I and II, and his oldest brother served in World War II and the Korean War.  He has four brothers and they all enlisted and were not drafted.  All five of them served during the Korean War.  He is not requesting the Purple Heart medal for himself, he is requesting it for his family.

4.  The applicant provides no addition documentary evidence in support of his application.

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 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, the reconstructed records contain sufficient documentation for the Board to conduct a fair and impartial review of this case.  

3.  The available military records show the applicant enlisted in the Army of the United States, Infantry Branch, in pay grade E-1, on 8 February 1951, for 3 years.  He served overseas for 7 months and 23 days.  He was assigned to Service Company, 148th Infantry Regiment.  Item 5 (Specialty Number or Symbol), of the applicant’s DD Form 214 (Report of Separation from the Armed Forces of the United States), shows he held the military occupational specialty 1824, Mess Steward. 

4.  The applicant's available records contain a hospitalization file listing (microfiche 031, page 182), created by the Office of The Surgeon General and a hospital admission card for the year 1951 that shows while serving in Korea the applicant was diagnosed with lymphadenitis and underwent an appendectomy in March 1951.  The hospital admission card also shows he was hospitalized between 15-19 days and he subsequently returned to duty.  There is no evidence in this listing that show he sustained an injury to his leg or to his ears as a result of enemy action.

5.  The applicant was honorably discharged from active duty at the expiration of his term of service on 8 February 1954.

6.  Entries on the applicant’s DD Form 214, Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaigns Ribbons Awarded or Authorized) lists the following awards:  the Good Conduct Medal; the Korean Service Medal, with one bronze service star; and the National Defense Service Medal.  The Purple Heart is not listed.

7.  Item 29 (Wounds Received as a Result of Action with Enemy Action), of the applicant’s DD Form 214, shows the entry, "NA" to indicate the applicant was not wounded while he served in Korea.  The applicant placed his signature in Item 48 for the individual being separated to indicate that the information recorded on the form was correct and complete to the best of his knowledge.

8.  There are no orders or evidence in the available evidence that show he was awarded the Purple Heart.  There is also no evidence that indicates he was wounded or treated for wounds as a result of hostile action.  

9.  The applicant's available records contain DA Form 1577 (Authorization for Issuance of Awards), dated 19 May 2008, prepared by the National Personnel Records Center, St. Louis, Missouri, wherein a Member of Congress was advised that the applicant was authorized and would be provided the following awards:  the Good Conduct Medal; the National Defense Service Medal; the Korean Service Medal, with one bronze service star; and the United Nations Service Medal.  The letter also advised that no record had been found to show that he was authorized the Purple Heart.

10.  The Korean War Casualty List does not show the applicant’s name as wounded as a result of enemy action.

11.  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 the 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 also provides that there is no statute of limitations on requests for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  By regulation, to be awarded the Purple Heart, it is necessary to establish that a Soldier was wounded or injured in action.  There is no evidence available, and the applicant has provided no evidence, which shows he was awarded the Purple Heart or that he was wounded or treated for wounds as a result of hostile action while serving in Korea.  The applicant's name is not recorded on the Korean War Casualty File and Item 29 of his DD Form 214 has the entry, "NA," to indicate he did not receive a wound in action against a hostile force.  Based on the foregoing, the applicant does not meet the regulatory requirements for award of the Purple Heart; therefore, he is not entitled to this award.  

2.  The applicant's contentions have been considered; however, he has provided no documentary evidence to show that he sustained an injury to his leg, or to his ears.  Without evidence that he was treated for a wound or wounds received as a direct result of enemy action and that his injuries were made a matter of official record, the applicant is not entitled to award of the Purple Heart.  In all cases the burden of proof rests with applicants to submit substantiating proof of their entitlement for award of the Purple Heart.  

3.  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

___x____  ___x____  ___x____  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.




      _______ _ x  _______   ___
               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)                                         AR20080010071



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ABCMR Record of Proceedings (cont)                                         AR20080010071


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