RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            JANUARY 13, 2004                  
	DOCKET NUMBER:   AR2003090595

	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	
	Mr. Jessie B. Strickland		Analyst	

  The following members, a quorum, were present:

	Ms. Lana E. McGlynn		Chairperson	
	Mr. Patrick H. McGann		Member	
	Mr. Roger W. Able		Member	

	The applicant and counsel if any, did not appear before the Board.

	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 that his report of separation (DD Form 214) be corrected to reflect his award of the Purple Heart.

2.  The applicant states that he was wounded/injured on duty in Korea and was awarded the Purple Heart; however, it was never included on his DD Form 214.  He also states that he was also awarded service connected disability by the Department of Veterans Affairs (VA).

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on 7 August 1958.  The application submitted in this case is dated 21 April 2003.  

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 limitation 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 military records are not available to the Board for review.  A fire destroyed 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.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

4.  The applicant enlisted in the Regular Army on 12 August 1955 for a period of 3 years.  He completed his training and was transferred to Korea, where he was assigned to the 74th Transportation Company (light truck).  He was advanced to the pay grade of E-4 on 27 October 1957.

5.  On 7 August 1958, he was honorably released from active duty (REFRAD) as an overseas returnee.  He had served 2 years, 11 months and 26 days of active service during his enlistment and had 8 days of lost time.  His DD Form 214 shows in item 26 that he was awarded the Marksmans Marksmanship Badge with rifle bar.  In item 27, the entry "None" is entered under " Wounds received as a result of action with enemy forces."  The applicant authenticated this form with his signature.

6.  A review of the available records shows that the applicant began applying for service-connected disability from the VA as early as 1986.  He sought service connection for residuals of a stab wound of the leg and contended that in May 1958, he was stabbed in the left leg while on duty in Korea.  He stated that he was on guard duty in the orderly room when a soldier entered with a knife and stated that he was going to cut everybody.  The applicant claims he disarmed the soldier, but in the course of doing so, he was stabbed in the left leg, hands, etc.  His medical records at the time showed an entry indicating that the applicant was cut with a knife and the stitches were removed from the right leg on 16 December 1957, after having been placed there 2 weeks earlier and had healed very nicely.  His records were negative for comments regarding a wound to the left leg.  The VA determined that he had service connection for residuals of a stab wound to the right leg, which was considered noncompensable (0%).  

7.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action from enemy forces.  Substantiating evidence must be provided to verify that the wound was a result of hostile action, that the wound must have required treatment by a medical officer, and that the medical treatment was made a matter of official record.  The period of hostilities in Korea that qualified for award of the Purple Heart was from 27 June 1950 through 27 July 1953.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  While the available evidence does establish that the applicant sustained a knife wound to the right leg, it does not establish an entitlement to award of the Purple Heart.

3.  The applicant enlisted in the Regular Army after hostilities had ended in Korea and there is no evidence that his wound was the result of actions caused by enemy forces.  Accordingly, there is no basis to award him the Purple Heart at this time.

4.  Records show the applicant should have discovered the error or injustice now under consideration on 7 August 1958; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 6 August 1961.  However, the applicant did not 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 file in this case.
BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

phm_____  lem_____  rwa_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not 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.  

		___Lana E. McGlynn__
		        CHAIRPERSON

INDEX

CASE ID	AR2003090595	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040113	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.  61	107.0015/PH	
2.		
3.		
4.		
5.		
6.