IN THE CASE OF:	   

		BOARD DATE:	  5 February 2014

		DOCKET NUMBER:  AR20130009964 


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 award of the Purple Heart.

2.  The applicant states he was wounded in battle.  The Purple Heart is not listed on his DD Form 214 (Report of Separation from the Armed Forces of the United States) and he was not issued or presented the award.  He has documents stating that he was wounded in battle in the combat zone.  

3.  The applicant provides:

* Special Orders (SO) Number 91 (two copies)
* SO Number 180 
* 1950 Certificate
* 1952 DD Form 214 (two copies)
* General Discharge Certificate
* 2012 Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)
* 2012 Certification of Military Service

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 complete military records are not available to the Board for review.  A fire destroyed approximately 16 million service members’ records at the National Personnel Records Center in 1973.  It is believed his records were destroyed in that fire.  However, there was sufficient documentation remaining in a reconstructed record and the documents submitted by the applicant for the Board to conduct a fair and impartial review of this case.

3.  The available records show the applicant enlisted in the Regular Army (RA) on 5 May 1950 for 3 years.  He completed training and was awarded military occupational specialty 4745 (rifleman).  

4.  He provided copies of the following:

   a.  SO Number 91, issued by the Eastern Recruiting District, on 5 May 1950, assigning him to the RA for 3 years.

   b.  SO Number 180, issued by Headquarters, 10th Infantry Division, on 2 August 1950, promoting him to pay grade E-2.

   c.  A Certificate, dated 29 January 1952, which certified he was serving as a member of Company L, 5th Infantry Regiment, had entered the combat zone, and had been hospitalized at the Tokyo Army Hospital in Japan, as a result of wounds, disease, or injury while serving in a combat zone and was entitled to exemption of payment of taxes on income for the months of January, February, and March 1952.

5.  He was discharged on 5 June 1952 in pay grade E-2.  He was credited with completion of 2 years and 29 days of net active service and 7 months and 2 days of foreign service.  He was issued a General Discharge Certificate.  His DD Form 214 lists in:

* Item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) - the Combat Infantryman Badge and Korean Service Medal with two bronze service stars
* Item 29 (Wounds) - the entry, "N/A"
6.  There are no orders in his available records authorizing or awarding him the Purple Heart during his period of service in Korea.

7.  He also provided copies of the following:

   a.  A VA Form 21-4138, dated 10 May 2012, wherein he stated he was 80 years of age and he was 10 percent disabled from a combat wound suffered during a combat tour in Korea.  He could not use his left arm for anything requiring any strength because of that wound.  He was requesting an increase of his rating to 50 percent.

   b.  A Certification of Military Service, issued on 5 June 2012, for his period of service from 5 May 1950 through 5 June 1952.

8.  His available record contains a letter, dated 8 November 2012, wherein the National Personnel Records Center advised him that the records needed to answer his inquiry were not in their files.  A fire destroyed the major portion of records of Army military personnel for the period 1912 through 1959.  They were pleased to authorize shipment of the following awards based on the documents he provided and/or official documents available:  the National Defense Service Medal, Korean Service Medal with two bronze service stars, the Combat Infantryman Badge, and United Nations Service Medal.

9.  Korean War Casualty list does not list his name.

10.  Army Regulation 600-8-22 (Military Awards) states 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.

DISCUSSION AND CONCLUSIONS:

1.  The regulation governing award of the Purple Heart specifically states that in order to support award of the Purple Heart, there must be evidence confirming the wound for which the award is being made was received as a direct result of, or was caused by enemy action, that the wound was treated by medical personnel, and a record of this treatment must have been made a matter of official record.

2.  The certificate, dated 29 January 1952, provided by the applicant was carefully considered.  However, the document does not specifically identify if he was wounded, injured, or diseased and/or how or when or whether he was wounded or injured as a direct result of or caused by enemy action.  The available records contain no orders or other documents confirming the injuries he received were caused by participation in direct or indirect combat operations while serving in Korea.  The regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  

3.  In view of the foregoing, there is no basis for granting his request for award of the Purple Heart

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)                                         AR20130009964





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ABCMR Record of Proceedings (cont)                                         AR20130009964



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