IN THE CASE OF:	

		BOARD DATE:	  31 March 2009

		DOCKET NUMBER:  AR20090000746 


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 is entitled to the Purple Heart for wounds that he sustained during the Korean War.  He states he initially refused the Purple Heart and now believes that he is entitled to award of the Purple Heart due to his service connected wounds. 

3.  The applicant provides copies of his DD Form 214 (Report of Separation from the Armed Forces of the United States), dated 12 December 1952, and a copy of his Department of Veterans Affairs (DVA) Corporate Award and Rating Data, dated 13 November 2008.

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 was sufficient evidence for the Board to conduct a fair and impartial review of this case.  The primary record available to this Board is the applicant’s DD Form 214.

3.  The applicant’s DD Form 214 shows he was inducted into the Army of the United States on 1 December 1950 for a period of 2 years.  The applicant’s DD Form 214 does not identify his military occupational specialty.  The entry in Item 5 (Qualifications Specialty Number) shows the entry “NA.”  

4.  On 12 December 1952, the applicant was released from active duty at the expiration of his term of service and transferred to the United States Army Reserve.  The DD Form 214 he was issued on this date shows he completed 2 years and 12 days of active Federal service that was characterized as honorable.  This DD Form 214 also shows he completed 10 months and 4 days of foreign and/or sea service.

5.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 does not show award of the Purple Heart.  Item 27 does show the applicant was awarded the Korean Service Medal and the United Nations Service Medal. 

6.  Item 28 (Most Significant Duty Assignment) shows the applicant was assigned to A Company, 440th Signal Aviation Battalion.  There are insufficient records to determine to what other units the applicant was assigned or the dates during which he was assigned.

7.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) of the applicant's DD Form 214 does not show he was wounded as a result of combat action in the Republic of Korea.

8.  There are no military medical records available for the Board to review and 
the applicant’s name is not listed on the electronic Korean Casualty File.

9.  The applicant provided as supporting evidence to his application a copy of his DVA Corporate Award and Rating Data, dated 13 November 2008.  This document shows two service connected disabilities.  The first diagnostic code is 5152 with a diagnosis description of amputation, traumatic.  The Veterans Affairs Schedule for Rating Disabilities (VASRD) shows that diagnosis code 5152 is defined as amputation of the thumb.  

10.  The second service connected diagnostic code is 7804 and shows the entry “healed tender skin graft scar lower abdomen.”  The VASRD shows diagnosis code 7804 is defined as scars, superficial, tender and painful. 

11.  The third diagnosis code that is shown on the applicant’s DVA Corporate Award and Rating Data is diagnostic code 9410 which is not service connected and its supporting description is nervous condition/post traumatic stress disorder. The VASRD shows that diagnostic code 9410 is defined as “other and unspecified neurosis.”

12.  Army Regulation 600-45 (Decorations), then in effect, provided, in pertinent part, that the Purple Heart is awarded to any member of an Armed Force or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. armed services has been wounded, killed, or who has died as a result of 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 military medical personnel, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to award of the Purple Heart for wounds he sustained while serving in combat operations in the Republic of Korea.

2.  The entry in Item 29 (Wounds Received as a Result of Action with Enemy Forces) of the applicant's DD Form 214 with a separation date of 12 December 1952 shows the entry “None.”  Due to a fire at the National Personnel Records Center in 1973, there are no available personnel records for the Board to review with this application.  No medical records are available for review.  A requirement for award of the Purple Heart is medical treatment and the treatment must be documented in official military medical records.  Therefore, in the absence of substantiating medical evidence, there is insufficient evidence upon which to base award of the Purple Heart.








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)                                         AR20090000746



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ABCMR Record of Proceedings (cont)                                         AR20090000746



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