RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 January 2008
	DOCKET NUMBER:  AR20070011145 


	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.


Ms. Catherine C. Mitrano

Director

Mrs. Nancy L. Amos

Analyst


The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Donald W. Steenfott

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 reconsideration of his earlier request for award of a second Purple Heart.

2.  The applicant states that in the phrase, “He had complained of an illness as a result of a concussion from a mortar wound,” the writer used the word “illness” to downplay the severity of his back injury.  He believes the choice of words was written to discredit his statement that he injured his back as a result of a concussion from a large mortar round that was trying to take out the tanks his unit was supporting.  The person who wrote the statement and medical personnel thought he was goldbricking.  The proper medical equipment was not available under combat for a proper diagnosis to determine the extent of his combat back injury or to medically confirm a back injury.  Twice he went on sick call to see a doctor; that should have constituted medical evidence (that he was treated for a combat wound).

3.  The applicant states that the large mortar round landed 5 to 10 feet from their foxhole.  The concussion from the impact of that large mortar round jarred his body severely and he felt a sharp pain in his back.  He helped another Soldier to the aid station.  He sat down, but when he went to get up he could not because of the severe pain in his back.  The medical personnel at the aid station gave him some pills and he was instructed to lie down.  He woke up the next day sore and painful and could hardly walk.  The medical personnel at the aid station gave him more pills and told him to rejoin his unit, which he did.  

4.  The applicant provides a DD Form 640 (Doctors Orders); a DD Form 212 (title unknown); a portion of a Department of Veterans Affairs (VA) 1977 Rating Decision; the front page of a Standard Form 88 (Report of Medical Examination), dated 24 December 1953; and the front page of a Standard Form 89 (Report of Medical History), dated 24 December 1953.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2003095043 on 13 May 2004.

2.  The applicant provided new evidence that will be considered by the Board.

3.  The applicant was apparently inducted into the Army on 25 October 1950.  He arrived in Korea on an unknown date but was wounded in action on 6 September 1951.

4.  The applicant provided a DD Form 640 that is largely illegible.  An entry dated 14 June indicated he was “admitted ambulatory to (unknown) for surgery.”  The rest of the entries also appear to be for June or July.  Information contained in ABCMR Docket Number AR2003095043 indicates that this document might be related to medical treatment the applicant obtained in June 1953.

5.  The applicant provided a DD Form 212.  This form states in part, “(the applicant’s) statement was substantially as follows:  He had complained of illness as a result of a concussion fr (sic) a mortar round and was sent back to duty by a doctor who told him that he was not seriously hurt.  When he saw the doctor a second time, he was told that there was nothing that could be done for him….”

6.  The applicant provided a portion of a VA Rating Decision that indicates the VA reviewed his service medical records for the period 21 November 1950 through 12 November 1954.  Those records did not indicate any complaint of back pain or any other symptom of an injury or wound to the back.  All of the service medical records were negative for any treatment for or diagnosis of any back condition.  His separation examination for that period of service was negative for any back condition.

7.  On 12 November 1952, the applicant was dishonorably discharged by reason of court-martial.  His DD Form 214 for the period ending 12 November 1952 shows he was awarded the Distinguished Unit Citation, the Korean Service Medal with one bronze service star, the United Nations Service Medal, and one Purple Heart.

8.  The applicant was later granted clemency and, on 24 December 1953, was restored to active duty.  He was honorably released from active duty on             16 November 1954.  His DD Form 214 for the period ending 16 November 1954 shows he was awarded the National Defense Service Medal.

9.  The VA originally denied the applicant service connection for a back injury.  He appealed the decision.  In April 1977, the VA granted his request for service connection for a back injury.  The VA noted that “The evidence does not indicate that the decision to deny service connection for the arthritis of the lower back was 

clearly and unmistakably erroneous.”  Nevertheless, the VA also noted that (page 15 of the Decision is not available), “…considered a combat veteran, his allegations of in service low back injury, alone, are sufficient to establish the occurrence of such injury during service.”

10.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained as a result of hostile action.  It states that a wound is defined as an injury to any part of the body from an outside force or agent.  A physical lesion is not required, provided the concussion or other form of injury is directly due to enemy action.  However, the wound for which the award is made must have required treatment by a medical officer and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.  

11.  Army Regulation 600-8-22 (Military Awards) states that the Republic of Korea War Service Medal (ROKWSM) is awarded to members of the U.S. Armed Forces who served in Korea and adjacent waters between 25 June 1950 and 27 July 1953.  The service prescribed must have been performed as follows:  

	(1)  while on permanent assignment;

	(2)  while on temporary duty within the territorial limits of Korea or on waters immediately adjacent thereto for 30 consecutive days or 60 nonconsecutive days; or 

	(3)  while as crew members of aircraft, in aerial flight over Korea participating in actual combat operations or in support of combat operations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant provided evidence that shows he was treated in June of an unidentified year for an unidentified condition; however, it appears that the injury for which he is requesting a second award of the Purple Heart occurred in October 1951.

2.  The applicant provided a DD Form 212, which he contended verified that he was treated for a combat injury to his back.  However, that form only refers to a statement that the applicant himself made, (i.e., “(the applicant’s) statement was substantially as follows:…”)  This form was not quoting from medical records.  As the VA Rating Decision noted, his service medical records did not indicate any complaint of back pain or any other symptom of an injury or wound to the back, 
all of the service medical records were negative for any treatment for or diagnosis of any back condition, and his separation examination for that period of service was negative for any back condition.

3.  The VA operates under its own policies and procedures.  Any decision it renders concerning service connection (which is not limited to injuries incurred only as a result of hostile action) is rendered independently of Department of Defense or Department of the Army policies concerning criteria for award of the Purple Heart.  

4.  There is no evidence of record to corroborate the applicant’s version of how his back was injured.  However, even if his back injury occurred exactly as he contends, the longstanding rule requiring Soldiers to seek medical assistance for a battlefield injury exists not only for purposes of corroboration but also has the effect of discriminating among the injuries eligible for the award.  Regrettably, even if the circumstances surrounding the applicant’s back injury could be corroborated it does not appear that they would have been serious enough to warrant award of a second Purple Heart.

5.  The applicant met the criteria for award of the ROK-KWSM.  This award should be added to his DD Form 214 for the period ending 16 November 1954.

6.  Evidence shows that the applicant’s records contain an administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __jlp___  __dws___  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

1.  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 to amend the decision of the ABCMR set forth in Docket Number AR2003095043 dated 13 May 2004.

2.  The Board determined that an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to add the ROKWSM to his DD Form 214 for the period ending 16 November 1954.




__William D. Powers___
          CHAIRPERSON




INDEX

CASE ID
AR20070011145
SUFFIX

RECON

DATE BOARDED
20080110
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
107.0015
2.

3.

4.

5.

6.