RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  
	DOCKET NUMBER:  AR20080000503 


	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.




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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 request for award of the Purple Heart.
 
2.  The applicant states, in effect, he believes that he has been denied the Purple Heart due to error and injustice that occurred during his active duty service in 1952.  He adds that the Department of Veterans Affairs (VA) has awarded him 100 percent service-connected disability.  The applicant also states that the documents he provides, particularly the letter dated 26 March 2007 that provides new evidence, should be sufficient evidence to prove his injuries occurred while on active duty.

3.  The applicant provides copies of page 2 of FAR 3, Special Orders Number 131, dated 5 July 1952; map of Seoul, Republic of Korea (ROK), with the handwritten date of 2 January 1953; DD Form 214 (Report of Separation from the Armed Forces of the United States), with an effective date of 6 June 1954; “Roy M_______ Army Memories” article (with pictures), undated; “Koje-do remembered” article (with pictures), by Fred J. W_________, pages 16 and 45, dated Winter 1988; Reverend, Colonel (COL) Joseph C. R____ (U.S. Army, Retired), Holy Redeemer College, Washington, District of Columbia, letter, dated
5 December 1992; Warren P. G____, letter, dated 30 June 1997; Lieutenant Colonel (LTC) John C. C_____ (U.S. Army, Retired), letter, dated 13 February 2006; Roy R. M_______, letter, dated 26 March 2007 (i.e., “new evidence”); and James W. B______, letter, dated 27 March 2008 (i.e., “new evidence”).

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 AC98-09158, on
23 September 1998.

2.  Army Regulation 15-185 (Army Board for Correction of Military Records) sets forth procedures for processing requests for correction of military records. Paragraph 2-15b of this Army regulation governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within 1 year of the ABCMR's original decision and it has not previously been reconsidered.  If the ABCMR receives a request for reconsideration more than 1 year after the ABCMR's original decision or after the ABCMR has already considered 1 request for reconsideration, then the case will be returned without action and the applicant will be advised the next remedy is appeal to a court of appropriate jurisdiction.

3.  The staff of the ABCMR reviewed the applicant’s request for reconsideration and determined that his request for reconsideration was not received within
1 year of the ABCMR's original decision.  As a result, the applicant’s request for reconsideration does not satisfy the criteria outlined above.  However, although the applicant did not file within the timeframe provided in the governing Army regulation, the ABCMR has elected to conduct a substantive review of this case for its determination of whether the new evidence is sufficient to demonstrate material error or injustice 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.

4.  The applicant's military service records are not available to the Board for review.  A fire destroyed approximately 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.

5.  The applicant's DD Form 214, with an effective date of 6 June 1954, shows that he enlisted in the U.S. Army and entered active duty for a period of 3 years on 1 June 1951 and that he had 1 year, 7 months, and 22 days foreign service.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the National Defense Service Medal, Korean Service Medal with 3 bronze service stars, United Nations Service Medal, Army of Occupation Medal with Japan clasp, and Combat Infantryman Badge.  Item 29 (Wounds Received As A Result Of Action With Enemy Forces) contains the entry “NONE.”  The applicant’s DD Form 214 also shows that he was honorably discharged on 6 June 1954 and credited with completing 3 years net service.

6.  In 1974, the applicant enlisted in the U.S. Army Reserve (USAR) and remained a member of the USAR until his retirement in 1994.

7.  There are no orders in the applicant’s military service records which show that he was awarded the Purple Heart.  There also is no evidence in his records that he was wounded or treated for wounds as a result of hostile action.  In addition, the applicant's name is not listed on The Adjutant General Office, Casualty Division's Korean Casualty Roster.

8.  The ABCMR, Memorandum of Consideration, Docket Number AC98-09158, dated 23 September 1998, documents the extensive record searches conducted by the National Archives and Records Administration (NARA) concerning the applicant’s alleged wounds received in Korea and information provided by NARA to Members of Congress, the Department of Veterans Affairs (VA), and American Legion during the period 12 December 1989 to 29 September 1997. In summary, the record searches and reviews failed to reveal the applicant sustained a head injury or gunshot wounds to the abdomen during the period of his military service in the Republic of Korea.

9.  On 19 September 2006, the Director, ABCMR, advised Senator Judd G____, U.S. Senate, that the applicant’s request was originally considered and denied by the Board on 23 September 1998.  The applicant’s request for reconsideration included letters from Reverend (COL) Joseph C. R____ (U.S. Army, Retired), Holy Redeemer College, Washington, District of Columbia, dated 5 December 1992 and LTC John C. C_____ (U.S. Army, Retired), dated 13 February 2006.

10.  On 6 July 2007, the Chief, Military Awards Branch, U.S. Army Human Resources Command, Alexandria, Virginia, advised the Honorable Paul H____, U.S. House of Representatives, that the applicant’s request for award of the Purple Heart was denied by the ABCMR.  This letter also advised that if the applicant could present newly discovered and relevant evidence that was not available to the Board for consideration when his application was denied, he may submit a request for reconsideration to the ABCMR with supporting documents.

11.  On 8 November 2007, the Chief, Case Management Division, ABCMR, advised the applicant his case was originally considered and denied by the Board on 23 September 1998 and that his case was reconsidered and administratively closed without referral to the Board on 19 September 2006.  The applicant’s request included the map of Seoul, ROK, with the handwritten date of 2 January 1953 and letters from Reverend (COL) Joseph C. R____ (U.S. Army, Retired), Holy Redeemer College, Washington, District of Columbia, dated 5 December 1992, LTC John C. C_____ (U.S. Army, Retired), dated 13 February 2006; and Roy R. M_______, dated 26 March 2007.

12.  In support of his request for reconsideration, the applicant now provides the following documents:

     a.  Page 2 of FAR 3, Special Orders Number 131, dated 5 July 1952, which shows, in pertinent part, that First Lieutenant Warrant P. G____ was appointed commanding officer of the 20th Transportation Truck Company, effective 5 July 1952. 
     b.  Map of Seoul (ROK) with, in pertinent part, the handwritten notes, “Line of fire where the 187th ARCT was on line August 21st, 1952” with various locations highlighted in yellow.  This document also contains the handwritten note, “[t]his is the presant (sic) situation here now, Jan 2nd, 1953, Sat - 4:10” and also contains the signature of the applicant, “Jean L_________.”

     c.  DD Form 214 (Report of Separation from the Armed Forces of the United States), with an effective date of 6 June 1954, which was previously introduced and considered in this Record of Proceedings.

     d.  “Roy M_______ Army Memories” article (with pictures) that provides a summary of the author’s military service and, in pertinent part, his assignment to the 187th Airborne Regimental Combat Team (ARCT) from May 1951 to February 1954.  The article does not make direct reference to the applicant.

     e.  “Koje-do remembered” article (with pictures), by Fred J. W_________, pages 16 and 45, dated Winter 1988, that, in pertinent part, provides a summary of the 187th ARCT’s activities from on or about 18 May 1952 to on or about
14 June 1952.  The article does not make direct reference to the applicant.

     f.  Reverend (COL) Joseph C. R____ (U.S. Army, Retired), Holy Redeemer College, Washington, District of Columbia, letter, dated 5 December 1992.  This document indicates that COL R_____ served with the applicant in Korea in the December 1951 to December 1953 timeframe and states, in pertinent part, “I do recall that [the applicant] was wounded, quite seriously, but cannot recall the exact date after this period of time.”

     g.  Warren P. G____, letter, dated 30 June 1997, which shows, in pertinent part, that Mr. G____ was the executive officer of the 20th Transportation Truck Company (ROK) and served with the applicant beginning the latter part of July 1952 or early August 1952.  He recalls that, “[o]ne evening during late fall or early winter” while disembarking a truck the applicant “apparantly (sic) lost his footing and fell to the ground” and “before the truck came to a stop the rear right wheels had pressed [the applicant’s] head into a rut.”  Mr. G____ states, “[the applicant] was obviously in pain and was yelling and rubbing his head with both hands.”

     h.  Lieutenant Colonel John C. C_____ (U.S. Army, Retired), letter, dated
13 February 2006, which shows, in pertinent part, that LTC C_____ was the executive officer of the Medical Company in support of the 187th ARCT.  He recalls treating the applicant in 1952, but states, “I do not remember, distinctly, his specific injuries.  I do remember, distinctly, the combat engagement.  We had many, many casualties.”
     i.  Roy R. M_______, letter, dated 26 March 2007, which the applicant submits as new evidence and shows that Mr. M_______ states, “I was at the aid station behind Company Headquarters when they were bringing in some of the wounded.  They were wounded from rifle and artillery fire.  In Sept. 1952 John L________ was brought to this station with a wound in the abdomen.  He was taken to the Regt. Medical Aid Station and I did not see him after that.”

     j.  James W. B______, letter, dated 27 March 2008, which the applicant submits as new evidence and shows that Mr. B______ states, “I observed a jeep being driven down our M.S.R. Main Supply Route when an enemy artillery shell came screaming in and exploded next to the jeep.  The jeep was hit by shrapnel as was the driver.  The jeep came to a momentary stop, then proceeded down the road.  I had no idea who the driver was, but later learned it was “Frenchy” [the applicant’s name] and he had been wounded.”

13.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards and, in pertinent part, contains the regulatory guidance pertaining to awarding the Purple Heart.  It states that the Purple Heart is awarded to any member who has been wounded or killed in action.  A wound is an injury to any part of the body from an outside force or agent sustained as a result of hostile action.  In order to support awarding a member the Purple Heart, it is necessary to establish that the wound for which the award is being made required treatment by a medical officer.  This treatment must be supported by records of medical treatment for the wound or injury received in action, and must have been made a matter of official record.  This regulation also provides examples of injuries or wounds which clearly do not qualify for award of the Purple Heart and cites, in pertinent part, accidents involving explosive, aircraft, vehicular, and other accidental wounds or injuries not related to or caused by enemy action.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his request for award of the Purple Heart should be reconsidered because he has obtained new evidence in support of his claim.
2.  The sincerity and authenticity of the comments in the writings provided in support of the applicant’s claim are not in question.  However, this collection of documentary evidence, provided by former Soldiers and produced from 40 to
56 years after the alleged occurrence, provides insufficient evidence upon which to base award of the Purple Heart.

3.  The evidence of record indicates the applicant’s head injury was sustained while he was disembarking a truck, he lost his footing and fell to the ground, and the rear right wheels of the truck pressed his head into a rut.  Thus, the evidence of record clearly shows that the alleged head injury was due to a vehicular accident.  The evidence of record also shows, in pertinent part, that injuries or wounds sustained as a result of accidents do not qualify for award of the Purple Heart.    Therefore, the applicant is not authorized award of the Purple Heart based on a head injury sustained in the ROK in 1952.

4.  The applicant provides a letter from Mr. Roy R. M_______ that indicates the applicant sustained a wound to his abdomen while serving in the ROK in September 1952 and is based on the author having observed the applicant being brought into a medical aid station.  Thus, the letter clearly shows the author was not a witness to the actual incident which may have been the cause of said injury.  Thus, this document, in and of itself, provides insufficient evidence to support the applicant’s claim for award of the Purple Heart.  In this regard, the Army regulatory guidance governing the criteria for award of the Purple Heart is clear in that the wound for which the award is made must have been received in action, it must have required treatment by a medical officer, and record of the medical treatment for the wound or injury received in action must have been made a matter of official record.  The evidence of provided does not satisfy the strict requirements for the award.

5.  The applicant also provides a letter from Mr. James W. B______ that indicates the applicant sustained a wound while he was driving a jeep.  However, Mr. B______ does not provide the date the incident occurred nor a description of the applicant’s wound.  In addition, the evidence indicates that the applicant did not seek immediate medical treatment for the wound (i.e., the driver proceeded down the road), nor was any medical treatment made a matter of official record.  Once again, the Army regulatory guidance governing the criteria for award of the Purple Heart is clear in that the wound for which the award is made must have been received in action, it must have required treatment by a medical officer, and record of the medical treatment for the wound or injury received in action must have been made a matter of official record.  The evidence provided does not satisfy the strict requirements for the award.

6.  There is no evidence the applicant was awarded the Purple Heart.  There is no official documentary evidence in the applicant's military service records that supports his contention that he sustained a wound as a result of hostile action, that he was treated for such a wound by a medical officer, or that the medical treatment was made a matter of official record.  In addition, the applicant's name is not listed on The Adjutant General Office, Casualty Division's Korean Casualty Roster.  Moreover, the evidence of record shows that extensive record searches conducted by the National Archives and Records Administration of various record systems failed to substantiate the applicant’s claim.  Therefore, in view of all of the foregoing, there is insufficient evidence upon which to base award of the Purple Heart in this case.

7.  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.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

x____  x_____  x________  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 AC98-09158, dated 23 September 1998.


2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.




      _____x___
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080000503



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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