MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 9 May 2002
         DOCKET NUMBER: AR2001060552



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

Mr. Carl W. S. Chun		Director
Ms. Antoinette Farley.		Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Mr. John N. Slone		Member
Mr. Terry L. Placek		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
                  records
         Exhibit B - Military Personnel Records (including
                  advisory opinion, if any)

APPLICANT REQUESTS: In effect, reconsideration of his request to correct his record by showing that he was awarded the Purple Heart (PH).

APPLICANT STATES: In essence, that he disagrees with the denial of awarding him the Purple Heart. He submits two letters of detailed explanation in support of his claim dated 11 July 2001, and 25 February 2002, three eyewitness statements from fellow soldiers who have previously supported the applicant’s case, and a letter dated January 2002 in support of his claim from his brothers and sisters.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in the original Memorandum of Consideration (MOC) prepared to reflect the Board's previous consideration of the case (AR2000049935) on 17 May 2001.

The applicant’s submissions are new evidence that requires the Board’s consideration.

The applicant claims that he and his fellow soldiers who served in the 65^th Infantry, Tank Company, in Northern Korea in February 1954 were involved in a mortar attack. He further claims that one of his fellow soldiers was an eyewitness to seeing seven soldiers killed and the applicant and others being wounded during their encounter with the Korean enemy. He points out that the soldier also witnessed him being transferred to a mobile field hospital near Song Dong, Korea, for treatment of shrapnel wounds to his forehead and frostbitten feet. He states that his encounter would not be shown on any morning reports because he was not, “tagged.” He further states that he was awarded the Korean War Medal (referring to either the Korean Service Medal or to the Korean War Service Medal) as well as other medals, and a Letter of Appreciation from the President of the Republic of Korea.

A 9 July 2000, letter from a fellow soldier who served in the same unit in Korea with the applicant added nothing related to the alleged head injury that the applicant sustained; however, in the letter he expressed his condolences to the applicant for the suffering he has experienced because of the cold weather injuries to his feet. He adds that he also suffers from cold weather injuries to the feet and opines that these injuries are common amongst veterans.

The second soldier’s notarized follow up statement, dated 15 February 2002, supports the applicant’s claim. This eyewitness claims that he saw seven soldiers killed and several wounded, to include the applicant. He adds that the applicant was taken to a mobile field hospital near Song Dong for treatment to the wounds he received to his forehead and for treatment for his frostbitten feet. He asserts that the applicant is a true hero and deserved his Purple Heart, all of his Korean medals and compensation due him for his service to his country.
The third soldier’s undated statement refers to the friendship they have had since 1943. He attests to having no knowledge regarding the applicant’s injuries except that the applicant has scarring on his head “evidence of some type of injury.” He recalls the applicant relating them to his service in Korea. He adds that the applicant is a hard working individual, is deserving of due consideration for the Purple Heart award and believes the applicant’s statement should be believed.

The applicant’s siblings provided a signed notarized letter in which they all attest to their brother serving in the US Army in Korea, and being wounded in the forehead, in 1954. They recall a uniformed officer coming to their home in Clinton, Tennessee, to talk with his parents and his wife who also lived there. They state that the officer informed them that the applicant had been wounded in combat by the North Korean Army. They recall that no documentation was given to his wife or parents. He told them their brother was okay. They add that their brother, the applicant, is very sick and seeking medical help from the VA Hospital in Johnson City, Tennessee. The letter ends by stating that their brother has not received his Purple Heart and they think he served our country well, and needs to receive his Purple Heart.

A search of his unit’s historical files determined that the journals of the 65^th Infantry, for the month of February 1954 failed to show any enemy actions as described by the applicant or his comrade-in-arms. However, the journal does show that on 23 March 1954, that the Tank Company’s area was strafed by two MIGS, that two tanks were destroyed, that one officer was killed, and that two enlisted men were wounded.

Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an opposing armed force of a foreign country is which the Armed Forces of the United States are or have been engaged. Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record

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Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence that was not in the record at the
time of the Board’s prior consideration. This includes but is not limited to any facts or arguments as to why relief should be granted. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than one year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been
submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered
contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. A review of his unit’s historical files found no evidence that verified enemy actions for the month of February 1954 or that the applicant underwent medical treatment for wounds received as a result of hostile action at any other time.

2. The Board again acknowledges the statements provided by the applicant, his family, former soldiers in his unit and other individuals. However, individual’s statements are inadequate, as the sole basis to support award of the Purple Heart because they do not fulfill the regulatory requirements.

3. Therefore, given the overall merits of the case, including the latest submissions and arguments, there is insufficient evidence for the Board to reverse its previous decision.

4. Therefore, the applicant is not entitled to award of the Purple Heart.

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

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__JL ___ __JNS __ ___TLP__ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001060552
SUFFIX
RECON	2002.05.0 9
DATE BOARDED
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON	107
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	107.15
2.
3.
4.
5.
6.