IN THE CASE OF:	  

		BOARD DATE:	        17 March 2009

		DOCKET NUMBER:  AR20080019777 


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 correction of his military records to show award of the Purple Heart.

2.  The applicant states that he believes he is entitled to award of the Purple Heart due to injuries sustained from direct action of Chinese forces at the Chou Sin Reservoir.  The applicant states that he was never nominated for the Purple Heart and now believes he should have been.  The applicant continues that he was unaware at the time that he could receive the Purple Heart.  He adds he was not wounded by fire, but the injury was sustained as a result of direct action by the enemy.

3.  The applicant indicates in support of his application that a Department of Veterans Affairs (VA) claim file is provided; however, the document is not available.

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.  With prior enlisted service, the applicant was appointed as a second lieutenant in the U.S. Army on 4 October 1943.

3.  The applicant’s records show he arrived in Korea on or about 30 December 1947.  His varied assignments included:

	a.  B Battery, 48th Field Artillery Battalion, on or about 30 December 1947;

	b.  Headquarters (HQ), U.S. Army Military Government in Korea (USAMGIK), on or about 4 April 1948;

	c.  HQ, XXIV Corps, on or about 15 August 1948; and

	d.  HQ, Korea Military Advisory Group (KMAG), on or about 3 September 1949.

4.  The applicant’s records indicate he was a member of KMAG during the start of the Korean War on 25 June 1950.  He remained a member of KMAG until he departed Korea on/about 27 April 1951.

5.  On 30 June 1963, the applicant retired in the rank of lieutenant colonel. 

6.  The applicant’s retirement DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 30 June 1963 shows he was awarded the American Theater Service Medal, the European-African-Middle Eastern Campaign Medal, the Asiatic-Pacific Campaign Medal, the Army of Occupation Medal, the Silver Star, the Korean Service Medal, the United Nations Service Medal, the American Defense Service Medal, the Bronze Star Medal with two oak leaf clusters, the Republic of Korea Presidential Service Medal, the Armed Forces Reserve Medal, and the Distinguished Military Service Medal.

7.  There are no general orders in the applicant’s service personnel records that show he was awarded the Purple Heart.  There also is no evidence in his service personnel records that show that he was wounded or treated for wounds as a result of hostile action in Korea.  The applicant's name is not listed on the Korean Casualty Roster.

8.  Item 21 (Awards and Decorations) of the applicant's DA Form 66 (Officer Qualification Record) does not show award of the Purple Heart.

9.  The applicant's Army medical treatment records are unavailable.

10.  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, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart due to unspecified injuries he sustained as a direct result of enemy action.  He indicated that he was providing a VA claim document in support of his case; however, the document was not available.  There is no evidence in the available records and the applicant has not provided evidence that identifies the nature of his injury or shows his injury was a result of hostile action.

2.  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.

3.  Regrettably, in view of the foregoing, there is insufficient evidence that would warrant 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.


															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)                                         AR20080019777



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ABCMR Record of Proceedings (cont)                                         AR20080019777



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