IN THE CASE OF:	  

		BOARD DATE:	  	   19 May 2009

		DOCKET NUMBER:  AR20090002171 


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

2.  The applicant states, in effect, he was wounded on the left side of his head on 18 July 1953 while serving in Korea and he already has his Purple Heart medal set; however, the Purple Heart is not recorded on his discharge document.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States) with an effective date of 3 September 1954.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, correction of the applicant's records to show award of the Purple Heart.

2.  Counsel states, in effect, it defers to the applicant.

3.  Counsel provides no additional documentary evidence.

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 service 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 in a reconstructed record, along with the documents provided by the applicant, for the Board to conduct a fair and impartial review of this case.

3.  In support of his application, the applicant provides a copy of his DD Form 214 that shows he entered active service in the Army of the United States (AUS) on 12 September 1952 and was honorably released from active duty on 3 September 1954 and transferred to the U.S. Army Reserve (USAR) to complete his remaining Reserve obligation.  Item 4 (Component and Branch or Class) shows he served in the Artillery branch of the AUS.  Item 5 (Qualifications) does not show a military occupational specialty; it contains the entry "NA."  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the applicant was awarded the Korean Service Medal with 1 bronze service star, United Nations Service Medal, National Defense Service Medal, and the Combat Infantryman Badge.  Item 28 (Most Significant Duty Assignment) shows he was assigned to Headquarters Battery, 76th Antiaircraft Artillery (Weapons) Battalion.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) contains the entry “LWA SFW OF LEFT SIDE OF HEAD 18 JUL 1953.”  At the time of his release from active duty the applicant had completed 1 year, 11 months, and 22 days of net active service for pay purposes and 1 year, 4 months, and 6 days of foreign service.

4.  There are no orders in the applicant’s available military service records that show he was awarded the Purple Heart.

5.  A review of The Adjutant General Office, Casualty Division's Korean Casualty Roster did not reveal the applicant's name on the roster.


6.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards and, in pertinent part, contains the regulatory guidance pertaining to awarding the Purple Heart.  It states that the Purple Heart is awarded to any member who has been wounded or killed in action.  A wound is an injury to any part of the body from an outside force or agent sustained as a result of hostile action.  In order to support awarding a member the Purple Heart, it is necessary to establish that the wound for which the award is being made required treatment by medical personnel.  This treatment must be supported by records of medical treatment for the wound or injury received in action, and must have been made a matter of official record at the time.
  
7.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show he was awarded the Purple Heart because his DD Form 214 shows that he was wounded on the left side of his head on 18 July 1953 while serving in Korea and he already has the Purple Heart medal.

2.  The applicant’s contentions and the documentary evidence he provides was carefully considered.  The evidence of record (i.e., item 29 of the applicant's
DD Form 214) shows that he was lightly wounded in action when he sustained a small fragment wound on the left side of his head on 18 July 1953.  However, this entry, in and of itself, provides insufficient evidence to support the applicant's claim to the Purple Heart.

3.  There are no orders or other corroborating evidence in the available military service records that shows the applicant was awarded the Purple Heart.  There is no official documentary evidence in the applicant's available military service records that shows he was treated by a medical officer for a wound or injury received as a result of action with enemy forces, or that the medical treatment was made a matter of official record.  In addition, the applicant's name is not listed on The Adjutant General Office, Casualty Division's Korean Casualty Roster.  Therefore, there is insufficient evidence upon which to base award of the Purple Heart in this case.

4.  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.  Therefore, in view of all 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:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action 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.



      ___________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)                                         AR20090002171



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ABCMR Record of Proceedings (cont)                                         AR20090002171



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