IN THE CASE OF:	  

		BOARD DATE:	      6 OCTOBER 2009

		DOCKET NUMBER:  AR20090009002 


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 correction of his DD Form 214 (Report of Separation from the Armed Forces of the United States) to show that he was wounded in Korea and that he was awarded the Purple Heart.

2.  The applicant states that he was a passenger in a truck that hit a land mine in North Korea on 15 October 1951 causing injury to his right tibia, left hallux valgus, left foot and skin over crest of his right foot.

3.  The applicant provides a copy of a WD AGO Form 6-118 (Disposition Board Proceedings); a copy of his Purple Heart medal; and a copy of his DD Form 214.

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.  This case is being considered using reconstructed records, which primarily consist of the documents submitted by the applicant and information from the Hospital Admission Cards created by the Office of the Surgeon General. 

3.  On 9 October 1950, the applicant enlisted in the Army in Indianapolis, Indiana. He successfully completed his training as a light weapons infantryman.

4.  Hospital Admission Cards created by the Office of the Surgeon General show that the applicant was in Korea on 15 October 1951 assigned to a field artillery unit when the vehicle in which he was riding struck a fragment or explosion of other explosive munitions (land mine).  He was diagnosed with a compound fracture, comminuted, with no nerve or artery involvement.  The Hospital Admission Cards also show that the injuries were the direct result of action against or by an organized enemy.  He was evacuated to the United States where he remained hospitalized for 300 days to 399 days.

5.  The WD AGO Form 8-118 that the applicant submitted shows that a Disposition Board convened on 13 January 1953 to determine his fitness for military duty.  The Disposition Board Proceedings show that on 19 December 1951 the applicant was transferred from the United States Air Force Station Hospital, Travis Air Force Base to Percy Jones Army Hospital, Battle Creek, Michigan.  After careful consideration of clinical records, laboratory findings and physical examinations, the Disposition Board diagnosed the applicant with a fracture, old, right tibia, due to enemy action when the truck in which he was riding hit a land mine on 15 October 1951; hallux valgus, left, due to trauma that he incurred on 15 October 1951; deformity of his left foot, secondary to the trauma that he incurred on 15 October 1951; and cicatrix of skin over the crest of his right tibia, due to the trauma that he incurred on 15 October 1951.  The Disposition Board recommended that the applicant be presented to a Physical Evaluation Board (PEB).  

6.  The PEB proceedings are not on file.  However, the applicant’s DD Form 214 shows that on 31 January 1953, he was permanently retired by reason of physical disability.  Although his DD Form 214 is barely legible, it shows that he was awarded the Korean Service Medal with three bronze service star and the Distinguished Unit Citation.  It appears that the United Nations Service Medal was also included on his DD Form 214.  However, that award is not clearly visible due to the damage and/or wear and tear contained therein.

7.  His DD Form 214 also shows “None” in item number 29 (Wounds Received as a Result of Action with Enemy Forces).  

8.  Army Regulation 600-8-22 (Military Awards) provides 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 required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

9.  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 through 27 July 1954, 1 January 1961 through 14 August 1974, 2 August 1990 through 30 November 1995, and 11 September 2001 through a date to be determined.

10.  The Government of the Republic of Korea issued the Republic of Korea War Service Medal to pay tribute to eligible Korean War veterans for their historic endeavors to preserve the freedom of the Republic of Korea and the free world.  The Department of Defense approved acceptance and wear of the Republic of Korea War Service Medal.  To qualify for award of the Republic of Korea War Service Medal, the veteran must have served between 25 June 1950 and 27 July 1953 and been on permanent assignment for 30 consecutive days, or on temporary duty for 60 non-consecutive days, within the territorial limits of Korea, in the waters immediately adjacent thereto, or in aerial flight over Korea participating in actual combat operations or in support of combat operations. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show that he was awarded the Purple Heart.

2.  His contentions have been noted and they are not without merit.  The available records show that the applicant was wounded in action on 15 October 1951 while he was in Korea after a truck in which he was riding hit a land mine.  The Hospital Admission Cards show that his injuries were the direct result of action against or by an organized enemy and that he was evacuated to the United States and hospitalized where he remained for over 300 days.

3.  It is reasonable to presume that he was awarded the Purple Heart as a result of his injuries and that, through no fault of his own, the appropriate information failed to be included on his DD Form 214.

4.  According to the applicable regulation, the applicant is also entitled to the National Defense Service Medal and the Republic of Korea War Service Medal.  His awards should also be included on his DD Form 214.

5.  Additionally, since the United Nations Service Medal is barely legible on his DD Form 214 would be appropriate to amend his DD Form 214 to reflect this award clearly.

6.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s record 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.  amending item number 29 on his DD Form 214 to show that he sustained a fracture to his right tibia and hallux valgus, left foot on 15 October 1951, in Korea; and
   
   b.  amending his DD Form 214 to add the Purple Heart, the National Defense Service Medal, the Republic of Korea War Service Medal, and the United Nations 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)                                         AR20090009002



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ABCMR Record of Proceedings (cont)                                         AR20090009002



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