IN THE CASE OF:	  

		BOARD DATE:	        30 JULY 2009

		DOCKET NUMBER:  AR20090004230 


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 the Purple Heart is not listed on his military discharge even though his medical records show he was wounded by the enemy in combat.  It was just brought to his attention that the award was not on his discharge and he needs it amended for family and Department of Veterans Affairs (DVA) reasons.

3.  In support of his application, the applicant provides copies of his WD AGO Form 8-26 (Emergency Medical Tag), Standard Form (SF) 88 (Report of Medical Examination), DD Form 214 (Report of Separation from the Armed Forces of the United States), DVA Rating Decision, a National Archives and Records Administration information sheet, and a picture of his inscribed Purple Heart.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be awarded the Purple Heart and provided a DD Form 215 (Correction to DD Form 214) listing this award.  

2.  Counsel states, in effect, that the applicant's DD Form 214 does not reflect award of the Purple Heart.  He also states that the applicant served on active duty from 31 October 1949 to 30 October 1952 and that on 25 October 1951 the 
applicant suffered shrapnel wounds to his legs bilaterally from engaging the enemy in combat near Magori, Korea.  He reviewed the applicant's military discharge and service treatment records that were contained in the applicant's DVA claim file.

3.  Counsel provides no additional documentary evidence in support of the applicant's application.

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 were sufficient documents remaining in a reconstructed record and documentation submitted by the applicant for the Board to conduct a fair and impartial review of this case.  

3.  The applicant's available military records show that he enlisted in the Regular Army (RA), in pay grade E-2, on 31 October 1949.  He served overseas in Japan and Korea for 1 year, 8 months, and 21 days.  He served with Company A, 5th Cavalry Regiment from 25 October 1951 through 13 November 1951.  

4.  The applicant submits copies of his WD AGO Form 8-26, that shows he was wounded by a missile shrapnel fragment to the left leg by enemy action on 25 October 1951 in Korea.  He was admitted to the hospital, treated, and returned to duty on 4 November 1951.  

5.  The applicant also submits a copy of his SF 88 showing he underwent a discharge examination on 28 October 1952.  The form noted small shrapnel scars on the lateral aspect of his right calf and the medial aspect of left calf and that the scars were well healed.
6.  The applicant was honorably discharged from active duty, as a private first class (temporary), on 30 October 1952, at the expiration of his term of service.  He was credited with 3 years of net active service and no lost time.

7.  Entries on the applicant's DD Form 214 do not show award of the Purple Heart.  Item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) lists the following awards:  the Army of Occupation Medal (Japan) and Korean Service Medal with six bronze service stars.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) shows the entry "None."

8.  The applicant's available records contain an Office of The Surgeon General hospital admission card (page 208, microfiche 030) for the year 1951 that shows while serving in Korea, the applicant was wounded in the lower leg by an explosive projectile shell as a direct result of action against or by an organized enemy and admitted to the hospital on 4 November 1951.  

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

10.  The Korean War Casualty List does not list the applicant’s name.

11.  A DVA Rating Decision, dated 16 January 1996, shows the applicant was granted service-connected disability for post-traumatic stress disorder, gunshot wound scars to the left and right legs and fingers on his left hand, and a gastrointestinal disorder.

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against the enemy or 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.

13.  Army Regulation 600-8-22 provides that the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 and 27 July 1954, 1 January 1961 and 14 August 1974, 2 August 1990, and 30 November 1995, and 11 September 2001 to a date to be determined.

14.  Army Regulation 600-8-22 states that the Republic of Korea War Service Medal is awarded to members of the U.S. Armed Forces who served in Korea and adjacent waters between 25 June 1950 and 27 July 1954.  The service prescribed must have been performed as follows:   a.  while on permanent assignment;  b.  while on temporary duty within the territorial limits of Korea or on waters immediately adjacent thereto for 30 consecutive days or 60 nonconsecutive days; or c.  while as crew members of aircraft, in aerial flight over Korea participating in actual combat operations or in support of combat operations. 

15.  Army Regulation 600-8-22 also provides for award of the United Nations Service Medal.  In pertinent part, the regulation states that the period of eligibility for the United Nations Service Medal was between 27 June 1950 and 27 July 1954.  The regulation provides that this service medal was awarded to members of the Armed Forces of the United States dispatched to Korea or adjacent areas on behalf of the United Nations.  Award of the Korean Service Medal automatically establishes eligibility for award of the United Nations Service Medal.

16.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register), dated 6 July 1961, shows that at the time of the applicant's assignment to Company A, 5th Cavalry Regiment, the unit was cited for award of the Bravery Gold Medal of Greece during the period of the Korean War by Department of the Army General Orders Number 2, dated 1956.

17.  Army Regulation 635-5 (Personnel Separations – Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized policy for the preparation of the DD Form 214.  In pertinent part it stated that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provided a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  If further stated, in pertinent part, for Item 29, enter the place and date for wounds received in action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and counsel contend that the applicant's DD Form 214 does not show entitlement to the Purple Heart.  There are no general orders in the available records that show he was awarded the Purple Heart.  However, the available evidence shows he sustained shrapnel wounds to his left leg as a result of enemy action on 25 October 1951 while serving in Korea, he received treatment by medical personnel, and the treatment was made a matter of official record.  Therefore, he is entitled to award of the Purple Heart and to have his records corrected to show this award.

2.  The available evidence shows that the applicant completed a qualifying period of service for award of the National Defense Service Medal and met the criteria for award of the Republic of Korea War Service Medal.  Therefore, the National Defense Service Medal and Republic of Korea War Service Medal should also be added to his DD Form 214.

3.  Based on the available records and completion of a period of qualifying service, it would further be appropriate to correct his records to show award of the United Nations Service Medal.  Therefore, he is entitled to have his records corrected to show this award on his DD Form 214.

4.  General orders confirm the applicant is also entitled to wear the Bravery Gold Medal of Greece and to have this foreign unit award added to his DD Form 214.

5.  The applicant was wounded in action at Magori, Korea on 25 October 1951.  Therefore, item 29 of the applicant's DD Form 214 should be corrected to reflect this information.

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

____X____  ____X____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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:

   a.  awarding the applicant the Purple Heart for wounds received as a result of enemy action on 25 October 1951;
   
   b.  adding to item 27 of the applicant's DD Form 214 the Purple Heart, National Defense Service Medal, Republic of Korea War Service Medal, United Nations Service Medal, and Bravery Gold Medal of Greece;
   c.  deleting from item 29 of the applicant's DD Form 214 the entry "None" and replacing it with the entry "Magori, Korea  25 October 1951; and
   
   d.  providing the applicant a corrected DD Form 214 that includes these awards.



      ________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)                                         AR20090004230



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ABCMR Record of Proceedings (cont)                                         AR20090004230



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