RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	   27 October 2005
	DOCKET NUMBER:  AR20050000814 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Carl W. S. Chun

Director

Ms. Yvonne Foskey

Analyst

The following members, a quorum, were present:


Mr. Melvin H. Meyer

Chairperson

Mr. Allen L. Raub

Member

Ms. Linda D. Simmons

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, award of the Purple Heart (PH).

2.  The applicant states, in effect, that his records fail to include information that would lead to him receiving the PH.  He further states that he is providing supporting documents to show his entitlement to be awarded the PH.  

3.  The applicant provides the following documents in support of his application:  Newspaper Clipping, dated 6 February 1970; Clinical Record Narrative Summary, dated 15 June 1956; Clinical Record Cover Sheet (DD Form 481-2), dated 15 June 1956; Clinical Record Tissue Examination (SF 515), dated 7 June 1956; Report of Dental Survey (DA Form 8-116), dated 14 May 1956; Clinical Record Operation Report ( SF Form 516), dated 7 June 1956; Abbreviated Clinical Record (SF Form 539), dated 4 June 1946; Doctor's Progress Notes 
(SF Form 509), Undated; Consultation Sheet (SF Form 513), dated 23 April 1954; Follow-Up Appointment Records (WD AGO Forms 8-24); and Radiographic Report, dated 23 April 1954.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 19 December 1972.  The application submitted in this case is dated 7 January 2005.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s record includes a separation document (WD AGO Form 53-55) issued to the applicant upon his separation on 10 March 1946.  This document shows he was inducted into the Army and entered active duty on 28 July 1942.  It also shows that he served in the European Theater of Operations (ETO) from 16 January 1945 through 3 March 1946, and that he earned the following awards during this period of active duty service:  Army Good Conduct Medal; World War II Victory Medal; American Theater Ribbon; and European-African-Middle Eastern Theater Ribbon with 1 bronze service star.  

4.  Item 34 (Wounds Received In Action) of the applicant’s WD AGO Form 53-55 contains the entry “None” and the applicant authenticated this document with his signature in Item 56 (Signature of Person Being Separated). 

5.  The applicant's record shows he reentered the Army on 15 August 1950 and continuously served through reenlistments until being released from active duty for the purpose of retirement on 19 December 1972.  During this period of service the applicant received six separate separation documents (DD Forms 214).  These documents show that the applicant earned the following awards during his tenure on active duty:  Combat Infantryman Badge; Korean Service Medal; United Nation Service Medal; National Defense Service Medal with 1st Oak Leaf Cluster; Armed Forces Reserve Medal; Silver Star; Vietnam Service Medal; Army Good Conduct Medal (7th Award); Vietnam Campaign Medal; Expert Qualification Badge with Rifle Bar and Sharpshooter Qualification Badge with Rifle Bar.  The applicant authenticated each of the separation documents with his signature on the date they were issued.  

6.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he served in Korea from 25 September 1951 through 1 September 1952; and that he served two tours in the Republic of Vietnam (RVN), from 19 December 1968 through 23 December 1969 and from 17 March 1971 through 28 January 1972.  

7.  Item 40 (Wounds) of the applicant’s DA Form 20 contains the following entries:  “Gunshot wound in chin-Sep 52; Gunshot wound in left leg-Feb 44”; Frags in right hip-Jul 52; and Frags in left shoulder-Mar 69”.  Item 41 (Awards and Decorations) of this record does not include the PH in the list of authorized awards entered.  Item 48 (Date of Audit) shows the applicant last audited the 
DA Form 20 on 15 February 1972.  

8.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Korean War Casualty Roster and Vietnam Casualty Roster.  This search failed to reveal the applicant’s name among the list of Korea or RVN battle casualties.  


9.  During the processing of this case, a member of the Board staff also reviewed the historical files located at the National Archives in Maryland.  This search of the unit historical files of the units the applicant was assigned to during World War II, Korea and Vietnam, failed to provide any evidence or indication that he was ever recommended for or awarded the PH.  

10.  The applicant provided medical documentation showing he received shell fragment to his chin in 1944 during World War II, and also a newspaper article that indicated he was awarded the PH.  However, none of the medical treatment records provided indicate the applicant's gunshot wound to the chin was received as a direct result of, or was caused by enemy action.  

11.  Army Regulation 600-8-22 of the awards regulation provides, in pertinent part, that the PH is awarded for a wound sustained as a result of hostile action.  In order to support award of the PH, there must be evidence verifying the wound for which the award is being made was received as a result of hostile action, the wound must have required treatment by military medical personnel, and the medical treatment must have been made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH was carefully considered.  However, by regulation, in order to support awarding a member the PH, it is necessary to establish that a member was wounded or injured in action, that the wound required medical treatment, and that the medical treatment was made a matter of official record.  

2.  Although Item 40 of the applicant’s DA Form 20 contains four separate entries related to his being injured in action, this same record fails to show he was ever awarded the PH.  This is an indication that these injuries were never verified to be combat related wounds by proper authority.  Further, the applicant last audited the DA Form 20 on 15 February 1972.  This serves as his verification that the list of awards contained in Item 41, which did not include the PH, was correct at that time.


3.  The medical treatment records provided by the applicant indicate the applicant was treated for a gunshot wound to the chin he received in 1944 during World War II.  However, they contain no verification that this gunshot wound was received as a direct result of, or was caused by enemy action.  The WD AGO Form 53-55 issued to the applicant for his World War II service contains the entry “None” in Item 34, which indicates he was never wounded in action, and the PH is not included in the list of earned awards entered.  The applicant authenticated this document with his signature on the date it was issued.  In effect, this was his verification that the information contained on the separation document, to include the Item 34 entry and the list of awards, was correct at the time the WD AGO Form 53-55 was prepared and issued.  

4.  The applicant received six separate separation documents between his reentry on active duty on 15 August 1950 and his retirement on 19 December 1972.  None of these separation documents included the PH in the list of earned awards entered, and there was no indication that he was ever wounded in action on any of the DD Forms 214.  The applicant authenticated all of these separation documents with his signature on the date they were issued.  In effect, this was his verification that the information they contained, to include the list of awards, was correct at the time the documents were prepared and issued.  

5.  Further, a review of the historical records maintained at the National Archives and of the DA Casualty Rosters for Korea and Vietnam failed to produce any evidence indicating the applicant was ever wounded in action, or recommended for or awarded the PH.  Although the veracity of the applicant’s claim of entitlement to the PH is not in question, absent any evidence of record to corroborate that the wounds he sustained were combat related, or that he was ever recommended or awarded the PH, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 19 December 1972.  Therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
18 December 1975.  He failed to file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___MHM_  ___ALR _  __LDS __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




_____Melvin H. Meyer ___
          CHAIRPERSON




INDEX

CASE ID
AR20050000814
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2005/10/27
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1972/12/19
DISCHARGE AUTHORITY
AR635-200 . . . . .  
DISCHARGE REASON
Retirement
BOARD DECISION
Deny
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
107
2.

3.

4.

5.

6.