IN THE CASE OF:	  

	BOARD DATE:	
	DOCKET NUMBER:  AR20080005167 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant's request, which was submitted to the Board through his Member of Congress (MOC), requests, in effect, reconsideration for award of the Purple Heart, with oak leaf cluster.

2.  The applicant's MOC requests, in effect, that the applicant's statements be investigated and that he be given all due consideration for award of the Purple Heart.  The MOC requests that he be advised of the status of the action at the Board's earliest convenience.

3.  The applicant states, in effect, this award was never entered on his DD Form 214, Report of Separation from the Armed Forces of the United States.  The applicant contends that he is entitled to award of the Purple Heart because he suffers from the effects of frostbite that he incurred during his service in Korea and due to the hearing loss that resulted from his having sustained a concussion injury which he also sustained while he served in Korea.

4.  In support of his request the applicant provides those documents that are listed on a hand-written listing titled, "Exhibits Regarding Medal Request," which includes a notarized eyewitness statement; two medics' statements; and a report of his hearing loss which was prepared by the Department of Veterans Affairs (VA).  In addition to these documents, the applicant now submits a "Release and Consent" form; a copy of a letter he addressed to an individual by the name of "Carlos"; and a copy of a Standard Form (SF) 88, Report of Medical Examination, dated 22 May 1952.

5.  The applicant's MOC again responded to the applicant's request on 5 May 2008, to forward documents to support his request.  After a review of all documents received was conducted, it was determined they are duplicates and triplicates of all documents which had already been received with the applicant's application.

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 AR20060009009 on 25 January 2007.

2.  The statement submitted by the applicant's eyewitness, dated 10 April 2006, was seen and considered by the Board during its earlier consideration of his case on 25 January 2007.  This statement is not new evidence; nonetheless, it was again reviewed to determine if any detail had been overlooked.  In reviewing this statement, it appears the statement is not actually an eyewitness statement but a summarization of what the alleged eyewitness believes happened.  In this statement he states, "[the applicant], a radioman, and the company commander went down to help that's when the Chinese enemy counter back with a barrage of mortar rounds.  That's when [the applicant] suffered a concussion and bleeding nose and ears."  In this statement, it appears the eyewitness did not actually accompany the applicant and the company commander and therefore he could not have been an eyewitness.  The knowledge he alleges to have was gained, it appears, after the alleged event.

3.  The applicant's eyewitness adds in his statement, "Another time in April 1952, on an outpost a short round from our own artillery fell on [the applicant's] bunker and he again suffered a concussion to the head.  Both times he was treated by our medic on the front lines."  There is an absence of language which puts him at the location where the "short round" exploded.  The eyewitness does not include phrases which includes him such as, "we were at an outpost . . . . and a 'short round' exploded over our position, etc."  Again, as in the previous paragraph, the applicant's eyewitness seems to be summarizing what he learned or what someone related to him happened.  It appears he was not an eyewitness in the true sense since he was not with the applicant at the very moment the alleged events occurred.

4.  The applicant resubmitted statements (statements dated 24 November 2004 and 24 April 2006) from an individual who identified himself as a senior medical 

aidman who was attached to Company B, 1st Battalion, 224th Infantry Regiment, 40th Infantry Division.  In the statement dated 24 November 2004, this individual alleges to have provided the applicant medical treatment for frostbite to both feet in January - February 1952 while they served in Korea.  In the statement dated 24 April 2006, this same individual alleges to have provided the applicant medical treatment for an inner ear injury he sustained due to an 80 MM mortar round from artillery near his position.

5.  The applicant resubmitted statements (statements dated 1 November 2004 and 15 April 2006) from an individual who identified himself as a medic also attached to Company B, 1st Battalion, 224th Infantry Regiment, 40th Infantry Division.  In the statement dated 1 November 2004, this individual alleges to have provided the applicant medical treatment for frostbite to his feet in February 1952, in Kumsong, in the Kumwha region, while they served in Korea.  In the statement dated 15 April 2006, this same individual alleges to have provided the applicant medical treatment for concussion and an inner ear injury due to an artillery shell explosion (due to a "short round" that fell short).

6.  As indicated, these statements were viewed and considered by the Board which considered the applicant's request on 25 January 2007; nonetheless, these statements were reviewed to determine if any detail had been overlooked that might change the results.  While conducting the review of the statements it was noted that neither of the four statements has information that would be useful in the verification process in determining if these individuals were assigned or as they indicate, attached to the unit; if they were assigned to the unit at the time of the alleged events; if they were performing the duties of a combat medic; etc.  The Board takes protecting the integrity of the Army's Awards Program very seriously and because of this it is reluctant to just accept statements that are not verifiable.

7.  The Audiological Examination report, dated 24 May 2006, the applicant resubmitted was seen by the Board which considered his request on 25 January 2007.  Based on this examination, and in part on the results of this report, the VA made a decision on a claim the applicant submitted to that agency and awarded him service-connected disability compensation.  The applicant was found to have a 40% disability due to bilateral hearing loss and a 10% disability due to bilateral tinnitus.

8.  Item 29 (Wounds Received as a Result of Action with Enemy Forces), of the applicant's DD Form 214, has the word, "None."

9.  There is no evidence in the available records which shows the applicant was wounded or treated for wounds as a result of hostile action in Korea.

10.  The applicant’s named does not appear on the Korean War Casualty Listing.

11.  The applicant provided a copy of a SF 88 which was completed on 22 May 1952.  This medical examination was performed in preparing for the separation of the applicant from active duty.  At the time of the medical examination, the examining physicians found the applicant's ears and feet to be normal.  In the "Notes" section of the SF 88 is an entry which indicates that the applicant had a scar on his left knee which existed there prior to his entry in service (EPTS).  Based on this examination, the applicant was found qualified for separation.

12.  The applicant apparently was not aware that EPTS meant the scar existed on his knee prior to his entry in service, and in a letter dated 26 February 2008, he addressed to an individual named, "Carlos," he asks him to, "please mention that the injury was received at an outpost in the front of the main line of resistance."  The scar, he tells Carlos, was the result of an injury he received from one of the explosions he allegedly was subjected to.

13.  The applicant's signature was affixed by the applicant to the appropriate space on the DD Form 214 he was issued at the time of his separation.

14.  Army Regulation 600-45, with an effective date of 27 June 1950 included the following language insofar as wounds were concerned:  "paragraph 21. b. Standards.  (1) For the purpose of considering an award of this decoration, a "wound" is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such an enemy.  A physical lesion is not required, provided the concussion or other form of injury received was directly due to enemy action and required medical treatment.  An "element" pertains to weather and the award of this decoration to personnel who were severely frostbitten while actually engaged in combat is authorized."  The regulation also stated in subparagraph "(2), Record of medical treatment for wounds or injuries received in action as prescribed above must have been a matter of record during the period o hostilities or within 6 months thereafter."

15.  The language in subparagraph (1) above was changed on 23 August 1951 to read, "For the purpose of considering an award of this decoration, a 'wound' is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such an enemy.  A physical lesion is not required, provided the concussion or other form of injury received was directly due to enemy action and required treatment by a medical officer.  Awards will not be made by reason of injuries due to frostbite or trenchfoot."

16.  Title 38, United States Code, sections 310 and 331, permits the VA to award disability ratings and compensation to veterans for disabilities which it determines were incurred in or aggravated by active military service and which subsequently affects the individual's employability.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  To be awarded the Purple Heart, substantiating evidence must be presented to show that the Soldier was wounded as the result of hostile action, the wound must have required medical treatment by military medical personnel, and the medical treatment must have been made a matter of official record.

2.  As indicated in the Record of Proceedings dated 25 January 2007 which was prepared in response to the applicant's original request, there is insufficient medical evidence to show the applicant was diagnosed with frostbite to his feet.  The applicant's alleged medical treatment providers allegedly treated his frostbitten feet in February 1952.  Even if the statements from the applicant's eyewitnesses were accepted, after 23 August 1951, award of the Purple Heart for frostbite was no longer authorized by regulation; therefore, the applicant is not entitled to award of the Purple Heart for any alleged injuries he may have sustained to his feet during his service in Korea due to frostbite.

3.  In reviewing the evidence in making a determination about the applicant's eligibility for award of the Purple Heart for an alleged injury to his ears, it appears the applicant's eyewitness to his ear injuries did not actually accompany the applicant and the company commander; and therefore, he could not have been an eyewitness.  The information he conveyed in his statement, it appears, was gained after the alleged event and after 56 years.

4.  A review of all the medical treatment-related statements resubmitted by the applicant was conducted and it was noted that none of the statements has information that would be useful in the verification process in determining if these individuals were assigned or attached to the same unit as the applicant and if they were performing the duties of a combat medic.  The Board takes protecting the integrity of the Army's Awards Program very seriously and because of this it is reluctant to accept statements that are not easily verified.

5.  A review of the Korean War Casualty Listing was conducted for any evidence the applicant was treated or hospitalized for treatment as a result of concussion during the Korean War.  The applicant's name is not on this Listing for any wound he may have sustained for concussion or otherwise.

6.  The applicant provided no additional documents, such as morning reports, unit status reports, duty journals, or personal medical records prepared at the time of his service during the Korean War which might have shown or provided an indication he was treated for wounds or injuries received as a result of enemy action.

7.  The applicant's DD Form 214 shows the entry, "None," in Item 29.

8.  The SF 88 the applicant provided, which was completed on 22 May 1952, shows that examining physicians found the applicant's ears and feet to be normal.  It is apparent that at the time of his separation, when the applicant's medical records would have been intact and fully available for their review, there was no evidence of any frostbite and/or concussion injuries that would reasonably have been identified and made a matter of record on the SF 88 to the benefit of the applicant in future service-related claims.

9.  The applicant signed the DD Form 214 in his own hand in the appropriate space on the date of his separation from the Army attesting that the information recorded on the DD Form 214 was, to the best of his knowledge, accurate and complete.  This included the applicant's affirmation he had not been wounded by the enemy while he served in Korea; therefore, based on the available evidence in this case, the applicant is not entitled to award of the Purple Heart and to have it added to his DD Form 214.

10.  In accordance with governing laws, the VA is the Department responsible for compensating veterans when service-related conditions cause social or industrial impairment after a Soldier's discharge.  Any rating action by the VA does not necessarily demonstrate error or injustice on the part of the Army.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit and uses a different standard for evaluating an applicant's entitlement/eligibility for compensation and other benefits, to include eligibility for military awards, than do the military departments.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  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 to amend the decision of the ABCMR set forth in Docket Number AR20060009009 dated 25 January 2007.




       _    __x_____   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080005167



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ABCMR Record of Proceedings (cont)                                         AR20080005167



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