RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 December 2007
	DOCKET NUMBER:  AR20070011472 


	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

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. John Slone

Chairperson

Ms. Marla J. N. Troup

Member

Mr. Thomas M. Ray

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 correction of his records to show a second award of the Purple Heart (1st Oak Leaf Cluster).

2.  The applicant states, in effect, that he was wounded on two separate occasions in combat while serving in Korea and that his records reflect only one award of the Purple Heart. 

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  a copy of DD Form 214 (Report of Separation from the Armed Forces of the United States), dated 30 April 1952;

	b.  a copy of DD Form 215 (Correction to DD Form 214), 20 November 2003;

	c.  a copy of WD AGO Form 0707 (Record of Award of the Purple Heart), dated 5 September 1951, for wounds received on 28 August 1951;

	d.  a copy of WD AGO Form 0707 (Record of Award of the Purple Heart), dated 5 September 1951, for wounds received on 2 September 1951; and,

	e.  a copy of Permanent Orders 324-05, dated 20 November 2003, awarding him the Good Conduct Medal.

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 records show that he enlisted in the Regular Army on 27 August 1946 and was honorably discharged on 11 December 1947.  He was transferred to a U.S. Army Reserve (USAR) component on 12 December 1947. He was subsequently ordered to active duty on 19 October 1950 at Fort Hood, Texas.  He arrived in Korea on 19 December 1950 and was assigned to Company A, 2nd Engineer Battalion (Combat).  The highest rank he attained during his military service was sergeant first class (SFC)/E-6 (Temporary).

3.  The applicant's records show that he was awarded the World War II Victory Medal, the Army of Occupation Medal with Japan Clasp, the Distinguished Unit Badge, the Presidential Unit Citation, and the Korean Service Medal with three bronze service stars.  His records were later corrected to add awards of the Purple Heart, the National Defense Service Medal, the United Nations Service Medal, the Good Conduct Medal, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and a fourth bronze service star to be affixed to his already awarded Korean Service Medal. 

4.  The applicant's records further show that he was wounded in combat on 2 September 1951, while serving in Korea.  He sustained serious injuries to his head and right heel, while in a tank when it was struck by enemy mortar shell fragments in Yang-gu, Korea.  

5.  The applicant's name is shown on the Korean Casualty File as having sustained wounds to his ankle, buttock and hip, and skull, on 2 September 1951. There is no record of wounds or injuries sustained on 28 August 1951.

6.  The applicant's medical records show that subsequent to his wounds in combat on 2 September 1951, the applicant was transferred to the 121st Evacuation Hospital where debridement of several of the wounds was carried out.  He was later transferred to Tokyo Army Hospital for neurosurgical treatment, and subsequently to Walter Reed Army Medical Center (WRAMC), Washington D.C.

7.  There are no medical records in the applicant's official military personnel file that show he sustained wounds as a result of hostile action on 28 August 1951 or that he was treated for wounds sustained on that date.

8.  Section 8 (Wounds Received Through Enemy Action) of the applicant's WD AGO Form 24A (Service Record) contains a blank entry.


9.  The applicant's records contain two WD AG Forms 0707 awarding him the Purple Heart for wounds received in action in Senchon, Korea, on 28 August 1951 and in Yang-gu, Korea, on 2 September 1951.  However, both forms were issued by the same Headquarters (the 8009th Army Hospital, Osaka, Japan); contained the same Order Number (304), and were published on the same date (5 September 1951).  Additionally, neither form shows an Oak Leaf Cluster, indicating a second award of the Purple Heart.

10.  On 31 March 1952, and subsequent to treatment and hospitalization, a Physical Evaluation Board (PEB) convened at WRAMC and found the applicant's condition prevented him from performing his duties and determined that he was physically unfit due to severe encephalopathy, moderate absence of bone, moderate multiple penetrating wounds in the right ankle and foot, and moderate multiple penetrating wounds to the neck.  The PEB recommended a combined disability rating of 70 percent and that the applicant be placed on the Permanent Disability Retired List.  Subsequent to this PEB, Department of the Army published Special Order Number 87, approving the applicant's disability retirement effective 30 April 1952, and he was discharged accordingly.

10.  The Purple Heart was established by General George Washington at Newburgh, New York on 7 August 1782 during the Revolutionary War.  It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action.

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that 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 a medical officer, and the medical treatment must have been made a matter of official record.  This regulation further states, in pertinent part, that an oak leaf cluster is awarded to denote the second and succeeding awards of the Purple Heart.







DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to correction of his records to show a second award of the Purple Heart.

2.  Evidence of record shows that the applicant sustained wounds on 2 September 1951 as a result of hostile action and that he was treated by military personnel and his medical treatment was made a matter of official record.  He was awarded the Purple Heart and his records were corrected to show this award.

3.  There is no evidence in the applicant's service personnel records which shows that he was wounded or injured as a result of hostile action on 28 August 1951 or that he was treated for such wounds.  The applicant's name is not listed on the Korean Casualty File as having sustained any injuries or wounds on 28 August 1951. 

4.  It appears that the Headquarters Issuing Authority published General Order Number 304 on 5 September 1951 and erroneously listed the applicant's wounds in Senchon on 28 August 1951.  It also appears that upon realizing the error, the Headquarters Issuing Authority reissued the same General Order Number, on the same date, showing the applicant's correct date as 2 September 1951 and correct location as Yang-gu, Korea.

5.  In view of the foregoing, there is insufficient evidence to award the applicant a second Purple Heart in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__js____  __mjnt__  __tmr___  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.




							John Slone
______________________
          CHAIRPERSON


INDEX

CASE ID
AR20070011472
SUFFIX

RECON

DATE BOARDED
20071218
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
107.0015
2.

3.

4.

5.

6.