IN THE CASE OF:	  

		BOARD DATE:	  25 September 2008

		DOCKET NUMBER:  AR20080012761 


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, through a member of congress, award of the Purple Heart (PH).

2.  The applicant states, in effect, that while on daylight patrol into enemy territory in Korea, he incurred combat related injuries on 17 February 1952.

3.  The applicant provides a Congressional letter and a self-authored letter with the documents identified on the attached exhibit list 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 to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed his records were lost or destroyed in that fire.  This case is being considered using a reconstructed NPRC file primarily consisting of his separation document (DD Form 214) and the documents the applicant provides.

3.  The applicant's DD Form 214 shows he was inducted into the Army and entered active duty on 2 November, 1950.  It also shows that he held the rank of sergeant first class (SFC), which he attained on 8 July 1952, on the date of his separation, and that he completed a total of 1 year, 11 months, and 23 days of active military service.  

4.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he earned the following awards during his active duty tenure:  Army of Occupation Medal (AOM) with Japan Clasp; Korean Service Medal with 1 bronze service star; United Nations Service Medal (UNSM); and Combat Infantryman Badge (CIB).  Item 29 (Wounds Received As a Result of Action With Enemy Forces) contains the entry "None", and the applicant authenticated the DD Form 214 with his signature in Item 48 (Signature of Person Being Separated) on the date of his separation, which was 24 October 1952.   

5.  The applicant's NPRC file contains no orders, or other documents that indicate he was ever recommended for, or awarded the PH.  It is also void of any medical treatment records or Office of The Surgeon General (OTSG) Hospital Admission Records that show he was ever treated for a combat related wound while serving on active duty.  

6.  The applicant provides two letters of support from individuals who indicate they served with him in Korea.  These individuals do not indicate they were present and witnessed the applicant being wounded or injured in action, but do support his claim of entitlement to the PH.  

7.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Korean War Casualty Roster.  There is no entry pertaining to the applicant on this roster.  


8.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to award a PH there must be evidence that a member was wounded or injured as a result of enemy action.  The wound or injury for which the PH is being awarded must have required treatment by a medical officer, and this treatment must have been made a matter of official record.  The PH guidance further states that accidents, to include accidental wounding, not related to or caused by enemy action clearly do not qualify for award of the PH.  

DISCUSSION AND CONCLUSIONS:

1.  By regulation, in order to support award of the PH, there must be evidence that the award is being made was received a result of enemy action; that the wound was treated by military medical personnel; and a record of this medical treatment must have been made a matter of official record.

2.  The available evidence and the independent evidence submitted by the applicant in this case fail to show he was ever wounded or injured as a result of enemy action, or that he was ever treated for a combat related wound or injury while serving on active duty.  

3.  Item 27 of his DD Form 214 does not include the PH in the awards listed.  Item 29 contains the entry "None", which indicates he was never wounded as a result of enemy action, and the applicant authenticated this document with his signature on the date of his separation in Item 48.  In effect, his signature on the separation document was his verification that the information it contained, to include the Item 27 and Item 29 entries, was correct at the time the DD Form 214 was prepared and issued.  Further, the applicant's name is not included on Korean War Casualty Roster, the official DA list of Korea battle casualties.  

4.  Although the third-party statements provided support the applicant's claim of entitlement to the PH, absent any evidence confirming he was ever wounded in action, or recommended for or awarded the PH by proper authority while serving on active duty, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  As a result, it would not be appropriate or serve the interest of all those who served in Korea and who faced similar circumstances to support granting the requested relief.   

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.
6.  The applicant and all others concerned should know that the decision regarding award of the PH in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  

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)                                         AR20080012761



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ABCMR Record of Proceedings (cont)                                         AR20080012761



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