IN THE CASE OF:	  

		BOARD DATE:	       12 February 2009

		DOCKET NUMBER:  AR20080017028 


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 that his first name be corrected in item 1 (Last Name, First Name, Middle Name) on his DD Form 214 (Report of Separation from the Armed Forces of the United States).  He also requests that his DD Form 214 be corrected to show award of the Purple Heart.

2.  The applicant states that his first name is Lu____ not La____.  He also states that he was wounded in Korea in combat and that he has the Purple Heart medal at his residence but it is not listed on his discharge. 

3.  The applicant provides a copy of his DD Form 214 and a birth certificate 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 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 on 18 October 1949.  He served as an infantryman in Korea and was honorably discharged on 26 November 1952.

4.  Item 1 on the applicant’s DD Form 214 shows the first name La____.  However, item 48 (Signature of Person Being Separated) shows the first name Lu____.  His DD Form 214 shows the Korean Service Medal with five bronze service stars, the Army of Occupation Medal with Japan Clasp, the United Nations Service Medal, and the Combat Infantryman Badge as authorized awards.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) on his DD Form 214 shows the entry, "NA" [not applicable].

5.  There are no orders for the Purple Heart in the available records.  However, the Korean Casualty File shows he was wounded in action on 23 September 
1950 and on 4 January 1951.

6.  The Office of The Surgeon General Hospital List shows the applicant was hospitalized on 22 September 1950 in Korea for wounds sustained as a direct result of enemy action.

7.  The Office of the Surgeon General Hospital List also shows the applicant was hospitalized on 4 January 1951 in Korea for wounds sustained as a direct result of enemy action.

8.  In support of his claim to correct his first name, the applicant provided a birth certificate which shows the first name Lu____.

9.  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.  The regulation also states, in pertinent part, that the bronze oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Purple Heart.

10.  Army Regulation 600-8-22 provides, in pertinent part, that the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 and 27 July 1954, 1 January 1961 and 14 August 1974, 2 August 1990 and 30 November 1995 and 11 September 2001 and a date to be determined.

11.  Army Regulation 600-8-22 states that the Republic of Korea War Service Medal (ROKWSM) is awarded to members of the U.S. Armed Forces who served in Korea and adjacent waters between 25 June 1950 and 27 July 1953.  The service prescribed must have been performed as follows:

	a.  while on permanent assignment,

	b.  while on temporary duty within the territorial limits of Korea or on waters immediately adjacent thereto for 30 consecutive days or 60 nonconsecutive days, or 

	c.  while as crew members of aircraft, in aerial flight over Korea participating in actual combat operations or in support of combat operations.

DISCUSSION AND CONCLUSIONS:

1.  Although item 1 of the applicant’s DD Form 214 shows the first name La____, item 48 of his DD Form 214 shows Lu____ is the first name.  Since the applicant contends that his first name is Lu____ and his birth certificate shows the first name Lu____, it would be appropriate to correct item 1 of his DD Form 214 to show the first name Lu____.

2.  Although the Korean Casualty Roster shows the applicant was wounded on 23 September 1950, the Office of the Surgeon General Hospital List shows he was hospitalized on 22 September 1950.  Therefore, the medical evidence of record which shows the applicant was hospitalized on 22 September 1950 and on 4 January 1951 in Korea for battle casualties are accepted as sufficient evidence on which to base two awards of the Purple Heart. In addition, item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 should be corrected to show the Purple Heart with First Oak Leaf Cluster.  In addition, item 29 on his DD Form 214 should be corrected to show he was wounded in action on 22 September 1950 and on 4 January 1951 in Korea.

3.  The applicant served a period of qualifying service for award of the National Defense Service Medal and the ROKWSM.

BOARD VOTE:

____x____  ____x____  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  awarding him the Purple Heart for wounds received in action on 22 September 1950 in Korea;

	b.  awarding him the Purple Heart with first oak leaf cluster for wounds received in action on 4 January 1951 in Korea;

	c.  deleting the first name in item 1 of his DD Form 214;

   d.  adding the first name "Lu____" in item 1 of his DD Form 214;

	e.  adding the Purple Heart with first oak leaf cluster, the National Defense Service Medal, and the ROKWSM to item 27 of his DD Form 214;

	f.  deleting the entry in item 29 of his DD Form 214; and

	g.  adding the entries, "Korea, 22 September 1950" and "Korea, 4 January 
1951" in item 29 of his DD Form 214.



      _________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)                                         AR20080017028



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ABCMR Record of Proceedings (cont)                                         AR20080017028



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