IN THE CASE OF:	  

		BOARD DATE:	        4 AUGUST 2009

		DOCKET NUMBER:  AR20090003089 


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 the military records of her late husband, a former service member (FSM), be corrected to show he was awarded the Purple Heart.

2.  The applicant states her late husband was a prisoner of war and had received the Purple Heart.  She states his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the Purple Heart as unverified.  She states she wishes to order the Purple Heart but has been unable to do so due to the current entry on his DD Form 214.

3.  The applicant provides, in support of her application, copies of the FSM's 
DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of separation of 6 October 1953; her and the FSM's marriage certificate, the FSM's death certificate; and one page from a Department of Veterans Affairs (VA) rating decision.

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 FSM's military personnel records show he enlisted in the Regular Army on 8 June 1948 for a period of 5 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 4345 (Light Vehicle Driver).  The FSM again enlisted in the Regular Army on 
11 December 1953 and was subsequently placed on the Retired List by reason of permanent disability on 31 March 1956.

3.  The FSM arrived in Korea on 6 July 1950 and he was permanently assigned to Headquarters Battery, 63th Field Artillery Battalion, 24th Infantry Division.  He was captured by North Korean troops on 15 July 1950.

4.  On 12 August 1953, the FSM was returned to military control.  An 
FEC Form No. 30 (Report of Medical History in Captivity) documents a Medical Survey American Recovered Prisoners of War (MS-ARPW) examination given to the FSM 3 days after his release from captivity.  Item 28 (Wounds) on this form indicates wounds on capture and shows the FSM had a wound to his foot upon capture.

5.  Section 8 - Wounds Received Through Enemy Action of the FSM's 
WD AGO 24A (Service Record) does not contain an entry for a wound to his foot.  Section 21 - Medals, Decorations, and Citations of his WD AGO 24A does not show he was awarded the Purple Heart.

6.  On 6 October 1953, the FSM was discharged by reason of the expiration of his period of service.  He had completed 5 years, 3 months, and 29 days of active service that was characterized as honorable.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the his DD Form 214 contains the entry: "PH Not Verified."  
Item 29 (Wounds Received as a Result of Action with Enemy Forces) contains the entry: "Shrapnel wound Rt (right) foot."

7.  There are no orders in the applicant's military service records awarding him the Purple Heart.

8.  The FSM's name appears on the National Archives Korean War Casualty File. However, it only verifies he was a prisoner of war.

9.  Special Regulation 615-360-1 (Separation of Enlisted Personnel), then in effect, stated that each wound received as the result of enemy action was to be entered chronologically in item 29 of the member's DD Form 214.  This entry was to include the date and place of action if recorded on records available at time of separation.  The theater of operations in which the action occurred may be entered if exact location is not recorded.

10.  Army Regulation 600-45 (Decorations), then in effect, which governed the award of Army decorations until 23 August 1951, stated the Purple Heart was awarded citizens of the United States serving with the Army, who are wounded in action against an enemy of the United States, or as a direct result of an act of such enemy, provided such wound necessitated treatment by a medical officer.  This regulation stated that for the purpose of considering an award of the Purple Heart, a “wound” is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.  

11.  Army Regulation 600-8-22 (Military Awards) states that the Republic of Korea War Service Medal was approved by the Assistant Secretary of Defense (Force Management Policy) on 20 August 1999 for acceptance and wear by veterans of the Korean War.  To qualify for award of the Republic of Korea War Service Medal, the veteran must have served in Korea and adjacent waters between 25 June 1950 and 27 July 1953 while on permanent assignment; or while on temporary duty for 30 consecutive days, or for 60 non-consecutive days, within the territorial limits of Korea, in the waters immediately adjacent thereto; or as a crew member of aircraft, in aerial flight over Korea participating in actual combat operations or in support of combat operations. 

DISCUSSION AND CONCLUSIONS:

1.  Entries on the FSM's MS-ARPW examination corroborates the entry in 
item 29 of his DD Form 214.  Therefore, there is sufficient evidence to award the Purple Heart in this case.  It would also be appropriate to delete the entry: "PH Not Verified" from item 27 of his DD Form 214 and enter the Purple Heart.

2.  The FSM was on permanent assignment in Korea when he was captured.  Therefore, he met the requirements for the Republic of Korea War Service Medal and it would be appropriate to include this award on his DD Form 214 with an effective date of separation of 6 October 1953.



BOARD VOTE:

____X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 awarding the FSM the Purple Heart for wounds received in 1950 in Korea.

2.  The Board also recommends that all Department of the Army records of the individual concerned be corrected by amending item 27 of the FSM's 
DD Form 214, with an effective date of separation of 6 October 1953 as follows:

	Delete: PH Not Verified.
	Add:  Purple Heart, Republic of Korea War Service Medal.




      _______ _   _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)                                         AR20090003089





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ABCMR Record of Proceedings (cont)                                         AR20090003089



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