IN THE CASE OF:	  

		BOARD DATE:	      1 OCTOBER 2009

		DOCKET NUMBER:  AR20090007041


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, award of the Purple Heart (PH). 

2.  The applicant states, in effect, that he was wounded in the Cherwon Valley, 38th Parallel in Korea and he should have received the PH.

3.  The applicant provides a DD Form 214 (Report of Separation from the Armed Forces of the United States), dated 7 March 1953; and an Honorable Discharge Certificate, dated 27 November 1956, in support of his 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 entire military record is not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed that a majority of the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents on file for the Board to conduct a fair and impartial review of this case.  This case is being considered using the applicant's DD Form 214, the Department of the Army (DA) Korean War Casualty Roster, and medical documents contained in his reconstructed record.

3.  The applicant's DD Form 214 for the period ending 7 March 1953 shows that he was inducted and entered the Army of the United States on 29 March 1951 in Charlotte, NC.  It also shows he attained the rank of private first class (PFC) on 25 February 1952 and that this was the rank he held on the date of his release from active service (REFRAD).  It further shows he completed 1 year, 11 months, and 9 days of active military service during the period covered by the DD Form 214, of which 10 months and 10 days were served overseas.

4.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) of the applicant's DD Form 214 shows the entry "None."  Further, Item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) does not show award of the PH.

5.  The applicant provides an Honorable Discharge Certificate which shows that after his REFRAD on 7 March 1953, he was transferred to the Enlisted Reserve Corps (ERC) to complete his remaining Reserve obligation.  He was ultimately honorably discharged from the ERC on 27 November 1956.

6.  During the processing of this case, a member of the Board's staff reviewed the DA Korean War Casualty Roster.  This roster contains entries of those personnel killed or wounded during the Korean conflict.  The applicant's name was not included as an entry on this roster.

7.  The applicant's reconstructed record includes 7 medical consultation sheets during the period August 1954 to January 1955.  The medical consultation sheets do not show that the applicant was ever treated for wounds received as a result of enemy action.

8.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to award a PH there must be evidence that the wound for which the award is being made was received as a 

result of enemy action, that the wound required treatment by medical personnel, and that a record of the medical treatment was made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been awarded the PH as a result of being wounded in the Cherwon Valley, 38th Parallel in Korea was carefully considered.  However, by regulation, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action; that it required treatment by medical personnel; and that a record of the medical treatment was made a matter of official record.  

2.  The applicant's name is not included on the Korean War Casualty Roster, nor do the medical documents contained in the applicant's reconstructed record show that he was treated for wounds at any time during his tenure in the Army.  Absent any evidence confirming the applicant was wounded in action or treated for a combat-related wound while serving in Korea, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  

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 this requirement related to award of the PH.   

4.  The applicant and all others concerned should know that this action related to award of the PH 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.  

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.



      ___________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)                                         AR20090007041



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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