IN THE CASE OF:	  

		BOARD DATE:	    1 February 2011

		DOCKET NUMBER:  AR20100018385 


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, through a member of congress, award of the Purple Heart (PH).

2.  The applicant states:

	a.  he should have been awarded the PH for injuries he sustained while serving in Korea during guerilla warfare;

	b.  due to the unjust racism that existed in 1951, he was not promoted or awarded the PH;

	c.  while walking on a dangerous road back to camp from a beer hall, three other Soldiers and himself were attacked by Korean guerillas and he was beaten and stabbed through his right hand with a Japanese sword;

	d.  after a military police patrol jeep arrived on the scene, he was taken to a medic where he received two stitches to his hand;

	e.  the next day following the attack, two of the Soldiers who were with him were promoted while the third Soldier and he were not;

	f.  he fought and served under the same flag and thought he was equal to
all Soldiers; and

	g.  he requests to be awarded the PH for his injuries and compensated for post traumatic stress disorder (PTSD) and mental anguish.

3.  The applicant provides the following documents:

* two letters from his Member of Congress
* a Privacy Act Release Authorization
* two self-authored statements
* a National Personnel Records Center (NPRC) letter, dated 12 April 2010
* his Honorable Discharge Certificate
* his DD Form 214 (Report of Separation from the Armed Forces of the United States)
* two photocopy photographs
* a Standard Form (SF) 88 (Report of Medical Examination), dated
7 November 1952

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 (NPRC) in 1973.  It is believed his records were lost or destroyed in that fire.  This case is being considered using a reconstructed NPRC file primarily consisting of his separation document (DD Form 214) and the documents the applicant provides.

3.  The applicant DD Form 214 shows he was inducted into the Army of the United States on 17 November, 1950.  It also shows in item 3 (Grade-Rate-Rank and Date of Appointment) that he was advanced to the rank/grade of private first class (PFC)/E-3 on 1 August 1951 and this was the rank he held on the date of his release from active duty.

4.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the Korean Service Medal during his tenure on active duty.  Item 29 (Wounds Received As a Result of Action with Enemy Forces) contains the entry "None."

5.  The DD Form 214 shows the applicant was honorably released from active duty on 12 November 1952, having completed 1 year, 11 months, and 26 days of net active service, of which 1 year, 1 month, and 11 days was foreign service.  The applicant authenticated the DD Form 214 with his signature in Item 48 (Signature of Person Being Separated) on the date of his separation.

6.  The applicant's NPRC file contains no orders or other documents that indicate he was ever recommended for or awarded the PH.  It is also void of any medical treatment records or Office of The Surgeon General (OTSG) Hospital Admission Records that show he was ever treated for a combat-related wound while serving on active duty.

7.  The applicant's NPRC file contains no orders or other documents that indicate he was advanced beyond the rank of PFC.

8.  The applicant provides a photograph and an SF 88 which indicates he has a scar on his right hand.

9.  During the processing of this case, a member of the Board staff reviewed the Department of the Army Korean War casualty roster.  There is no entry pertaining to the applicant on this roster.

10.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  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 a member was wounded or injured as a result of enemy action.  The wound or injury for which the PH is being awarded must have required treatment by a medical officer, and this treatment must have been made a matter of official record.  

11.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that were prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  It also establishes 
standardized policy for preparing and distributing the DD Form 214.  The regulation in effect at the time of the applicant’s discharge contained item-by-item instructions for completing the DD Form 214 in Section II.  These instructions indicated that the active duty grade of rank and pay grade at the time of separation will be entered in Item 3 on that document.

DISCUSSION AND CONCLUSIONS:

1.  By regulation, in order to support award of the PH, there must be evidence that the wound was received as a result of enemy action, that the wound was treated by medical personnel, and a record of this medical treatment must have been made a matter of official record.

2.  The available evidence and the independent evidence submitted by the applicant in this case fails to show he was ever wounded or injured as a result of enemy action or that he was ever treated for a combat-related wound or injury while serving on active duty.  While the SF 88 shows he has a scar on his right hand, it fails to provide the facts and circumstances that led to this injury.

3.  Item 19 of his DD Form 214 contains the entry "None," which indicates he was never wounded as a result of enemy action.  Further, the applicant's name is not included on Korean War casualty roster, the official Department of the Army list of Korean War battle casualties.

4.  Absent any evidence confirming the applicant was ever wounded in action, or recommended for or awarded the PH by proper authority while serving on active duty, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  As a result, it would not be appropriate or serve the interest of all those who served in Korea and who faced similar circumstances to support granting the requested relief.

5.  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 him 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.



      _______ _ 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)                                         AR20100018385



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ABCMR Record of Proceedings (cont)                                         AR20100018385



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