IN THE CASE OF:	  

		BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20100007104 


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, correction of item 30 (Service Schools or Colleges, College Training Courses and/or Post-Grad Courses Successfully Completed) of his DD Form 214 (Report of Separation from the Armed Forces of the United States).  He also requests award of the Purple Heart.

2.  The applicant states, in effect, his DD Form 214 should read he completed the Advanced Noncommissioned Officer (NCO) School at Fort Benning, Georgia.  He was decorated as an instructor and also attended the NCO Academy in Munich, Germany.  He also requests award of the Purple Heart for the wounds he received in combat in Korea.  He states, in effect, his medical records located at the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri, should be reviewed to confirm his injuries.

3.  The applicant provides a copy of a VA Form 21-4138 (Statement in Support of Claim).

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.  His military records are not available for review.  St. Louis, Missouri, advised that the record needed to respond to the request was not available due to the 1973 fire and the type of information requested could not be reconstructed. 
A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  His available records show he enlisted in the Regular Army in pay grade E-1 on 12 March 1952 for 3 years.  He served overseas for 1 year, 1 month, and 20 days.  His most significant assignment was Company E, 2nd Infantry.  He held military occupational specialty 1745 (light weapons squad leader).

4.  His available records contain a Standard Form 88 (Report of Medical Examination), dated 6 June 1955.  This examination was completed for the purpose of separation.  The form contains no entry to indicate he was wounded in action.

5.  He was honorably discharged prior to the expiration of his term of service on 27 December 1954.  He immediately reenlisted in the Regular Army for a period of 6 years. He was honorably released from active duty on 8 June 1955 and was transferred to the U.S. Army Reserve.

6.  Item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not list the Purple Heart.  Item 29 (Wounds Received as a Result of Action with Enemy Action) shows the entry "none" to indicate he was not wounded while he served in Korea.

7.  Item 30 of his DD Form 214 shows he completed the Advanced NCO Course at the Infantry School, Fort Benning, in May 1954.  As a result, the request for correction of item 30 will not be discussed further in this Record of Proceedings.

8.  There are no orders or evidence in the available records that show he was awarded the Purple Heart.  There is also no evidence that indicates he was wounded or treated for wounds as a result of hostile action while serving in Korea.
9.  The Korean War Casualty File does not show the applicant's name as wounded as a result of enemy action.

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

DISCUSSION AND CONCLUSIONS:

1.  By regulation, to be awarded the Purple Heart, it is necessary to establish that a Soldier was wounded or injured in action.  There is no evidence available and he has provided no evidence which shows he was awarded the Purple Heart or that he was wounded or treated for wounds as a result of hostile action while serving in Korea.  His name is not recorded on the Korean War Casualty File and item 29 of his DD Form 214 has the entry "none" to indicate he did not receive a wound in action against a hostile force.  Based on the foregoing, he applicant does not meet the regulatory requirements for award of the Purple Heart; therefore, he is not entitled to this award.

2.  His contentions have been considered; however, he provided no documentary evidence to show he was wounded while serving in Korea.  Without evidence that he was treated for a wound or wounds received as a direct result of enemy action and that his injuries were made a matter of official record, the applicant is not entitled to award of the Purple Heart.  In all cases the burden of proof rests with applicants to submit substantiating proof of their entitlement for award of the Purple Heart.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100007104



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ABCMR Record of Proceedings (cont)                                         AR20100007104



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