IN THE CASE OF:
BOARD DATE: 28 April 2009
DOCKET NUMBER: AR20090000981
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 his DD Form 214 (Report of Separation from the Armed Forces of the United States) does not show award of the Purple Heart that he should have received for shrapnel wounds to his right knee cap.
3. The applicant provides, in support of his application, copies of his DD Form 214 and Standard Form 88 (Report of Medical Examination).
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 applicants 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 applicants 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 member's records at the National Personnel Records Center in 1973. It is believed that his records were lost or destroyed in that fire. However, there are sufficient documents available to conduct a fair and impartial review of this specific request.
3. The applicant's DD Form 214 shows the following:
a. On 30 March 1951, the applicant enlisted in the Regular Army for 3 years. He was awarded military occupational specialty (MOS) 1542.
b. The applicant's most significant duty assignment was with Headquarters Battery, 90th Antiaircraft Artillery Battalion.
c. The applicant's awards included the Korean Service Medal with three bronze service stars, United Nations Service Medal, National Defense Service Medal, and the Good Conduct Medal. It does not show that he was awarded the Purple Heart or that he received any wounds as a result of enemy action.
d. The applicant attained the rank of sergeant and was honorably discharged on 29 March 1954. He had completed 3 years of creditable active duty service.
4. The applicant's separation medical examination, provided by the applicant, states that he had a one inch scar on his right knee. It further stated, in effect, that he had received shrapnel in his right knee cap that was without complications.
5. The applicant's name does not appear on the Korean War Casualty List as a combat casualty.
6. Army Regulation 600-8-22 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that he was wounded in action during his tenure of service and should have been awarded the Purple Heart.
2. The available evidence clearly shows that the applicant suffered a shrapnel injury while on active duty. Unfortunately, there are no available records and the applicant has not provided any evidence showing the circumstances surrounding his injury or that he received medical treatment at the time of the injury. Furthermore, his name is not listed in the Korean Casualty File as a combat casualty.
3. 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 the aforementioned requirement.
4. 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.
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ABCMR Record of Proceedings (cont) AR20090000981
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