BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090008860 


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 he be awarded the Purple Heart. 

2.  The applicant essentially states that he sustained wounds from enemy forces while in Korea on Hill 902, but he was never awarded the Purple Heart.  He also provided the name of the medic he claims treated his wounds.

3.  The applicant provides his DD Form 214 (Report of Separation from the Armed Forces of the United States) for his service from 21 April 1948 to
26 January 1952 in support of this 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 show that he was retired by reason of sufficient service for retirement from the Regular Army (RA) in the rank/grade of sergeant first class (SFC)/E-7 on 31 July 1973, having completed more than 25 and a half years of active duty service.  He served nine overseas tours, including tours in Korea from September 1950 to September 1951 and two tours in Vietnam from 26 November 1966 to 26 October 1967 and from 17 June 1969 to 17 May 1970.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that was issued to him at the time of his retirement shows that he was awarded the Army of Occupation Medal with Japan Clasp, Republic of Korea Presidential Unit Citation, World War II Victory Medal, National Defense Service Medal with one oak leaf cluster, Republic of Vietnam Campaign Medal with Device (1960), Army Commendation Medal, Korean Service Medal with one silver service star, United Nations Service Medal, Good Conduct Medal (5th Award), Vietnam Service Medal with one silver service star, Soldier's Medal, Bronze Star Medal, Distinguished Unit Citation, and the Combat Infantryman Badge with one star (2nd Award).

3.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) of the applicant's DD Form 214 for his service from 21 April 1948 to 25 June 1952 has an entry showing that he was wounded in action on 27 April 1951 in Korea, but this DD Form 214 does not show that he was awarded the Purple Heart.  None of his other separation documents show that he was awarded the Purple Heart.  Additionally, Section 8 (Wounds Received Through Enemy Action) of his DA Form 24A (Service Record) covering his service from 21 April 1948 to
26 January 1952 does not contain an entry showing that he was wounded in action on 27 April 1951.  There are no orders in his military records awarding him the Purple Heart and the Korean War Casualty Roster does not contain an entry showing that he was ever wounded in action in Korea.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) also does not contain an entry showing that he was ever wounded in action, and item 41 (Awards and Decorations) of this same document does not show that he was awarded the Purple Heart.  It should be noted that a request was sent from the applicant's servicing personnel service center on 11 March 1968 during his inprocessing requesting that the U.S. Army Personnel Services Support Center, Fort Benjamin Harrison, IN, verify in part that he was wounded in action.  In a first indorsement, dated 9 April 1968, the Adjutant General stated that the applicant's hospitalization was not due to enemy action.

4.  The applicant's Standard Form (SF) 88 (Report of Medical Examination), which was completed on 24 January 1952, does not contain any information related to the applicant's wounding on 27 April 1951.  His service medical records also contain evidence which show that he was admitted to medical treatment 

facilities on 22 January 1951, 23 March 1951, 2 May 1951, and 10 June 1951 for recurrent infectious hepatitis, but not for any wounds.  A medical report, dated
17 June 1951, stated that the applicant had been hospitalized in Japan earlier that year for investigation of recurrent symptoms of right upper quadrant pain and vomiting, and that he was evaluated at the 4th Field Hospital in April 1951.  It also stated that various diagnoses were noted on the medical records at that time, including relapsing hepatitis, peptic ulcer, and malingering, but that the applicant's final diagnosis was no disease.

5.  Army Regulation 600-8-22 (Military Awards) 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 been treated by military medical personnel, and the medical treatment must have been made a matter of official records.  Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire; the wound or injury must have required treatment by military medical personnel; and the record of medical treatment must have been made a matter of official Army records.  A physical lesion is not required, however, the wound for which the award is made must have required treatment by a medical officer and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.

6.  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.  This 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 that he should be awarded the Purple Heart.

2.  The fact that item 29 of the applicant's DD Form 214 for his service from 
21 April 1948 to 25 June 1952 contains an entry stating that he was wounded in action on 27 April 1951 was noted.  However, this lone entry is not corroborated by any other evidence in his military personnel records or service medical records which encompassed his 25-year military career.  His DA Form 24A which 
covered the period in question does not contain a corroborating entry that he was wounded in action, and the medical evidence in his service medical records only shows that he was treated for non-combat related medical issues, such as recurrent infectious hepatitis in 1951.

3.  Notwithstanding the entry in item 29 of his DD Form 214 for his service from 21 April 1948 to 25 June 1952, the preponderance of the evidence in this case does not show that the applicant was wounded in action in 1951.  Additionally, there is no entry on the Korean War Casualty Roster showing that the applicant was ever wounded in action in Korea.

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.  In view of the foregoing, there is insufficient basis for awarding the Purple Heart to the applicant in this case.

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.

ABCMR Record of Proceedings (cont)                                         AR20090008860



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ABCMR Record of Proceedings (cont)                                         AR20090008860



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