IN THE CASE OF:	  

		BOARD DATE:	  
		DOCKET NUMBER:  AR20080005267 


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 requests, in effect, award of the Purple Heart, with two Oak Leaf Clusters. 

2.  The applicant states, in effect, that he was wounded in action in Korea on 4 August 1950, 18/19 August 1950, and 28 November 1950.  He also states that the wounds were received during defensive combat operations and could not be documented due to mass loss of personnel.  He further states that he enlisted in the United States Army on 23 September 1948 for a three year enlistment.  He served until 22 May 1952 and was then discharged.  He served in the infantry, as a combatant during the Korean War from 7 July 1950 to 1 June 1951.  He was advised that his Army records were destroyed in the 1973 fire at the National Records Center in St. Louis, Missouri.  His military and medical records appear to be nonexistent.  Infantry units were overrun by the enemy which in turn forced, in many instances, medical units in the rear to abandon their facilities, evacuate casualties, and in the confusion and haste, medical records were left behind to escape the enemy.

3.  The applicant also states that he was assigned to Company F, 2nd Battalion, 27th Infantry Regiment.  He states, in effect, that he was first wounded on 4 August 1950, when Company F was on high alert.  He was standing in his foxhole observing when incoming small arms firing started and he was struck in the left cheek of his face by a bullet.  He left his foxhole and found the platoon medic; the medic bandaged his face and he returned to the foxhole.  He was wounded a second time on 18/19 August 1950.  This occurred at the "Bowling Alley" north of Tabu-Dong, north of Taegu, South Korea.  An enemy tank fired at their tank behind his foxhole.  Their 85mm round struck very close to his foxhole and he was wounded in the left upper arm by flying shrapnel.  When daylight came, a medic came by and treated his bleeding wound, which was not serious enough for him to go to the rear.  General Uzal W. Ent wrote a book, "Fighting on the Brink" and included the "Bowling Alley."  Statements referencing the applicant's wound are included on page 228 of the book.  The applicant provided a copy of the referenced page with his application.

4.  The applicant further states that he was wounded a third time on 28 November 1950.  His outfit was moved up into a reserve position behind the Task Force to assist them in case of heavy fighting.  The Chinese overwhelmed the Task Force during the night.  A decision was made for Company F to attack the Chinese and break the roadblock so the Task Force could withdraw.  Company F moved out and the battle was on.  They were strapped with many wounded and no place to go.  Company F did a fighting withdrawal and pulled back to Ipsok, North Korea, and set up a new line.  On 28 November 1950, they finally received the order to pull back.  As they moved in the dark, the Chinese shelled them with mortar fire and he was struck in the left knee with shrapnel.  He yelled for a medic, which they no longer had; someone came, cut his pants open, pulled the shrapnel out, wrapped a bandage around it, and they moved on out.  As it was dark; he did not know who this person was.  With his discharge physical the wounds were brought up and no action was taken.  They were not entered on his DD Form 214 for lack of information and he was advised to take it up with the Department of Veterans Affairs (VA).  After his discharge, he went to the VA, but with no medical documentation, no action was taken.  He went back in the service and joined the United States Air Force and he retired in December 1971.  

5.  The applicant further states that considering all that has occurred, it would appear the only source of information would be eyewitness and personal accounts.  He is submitting the information he has been able to locate.  Serving as an infantry combatant in the Korean War with all the hardships imposed on them due to the lack of troops and equipment, in his opinion, he has earned the right to these awards and it is still a matter of principle.  

6.  In support of his application, the applicant provides copies of his orders for award of the Bronze Star Medal with "V" Device; a copy of a 1950 letter to his parents; his DD Form 214 (Report of Separation from the Armed Forces of the United States); a newspaper article pertaining to his furlough home; his Department of the Air Force Retirement Orders; self-authored diagrams of Chong-Yong, Tabu-Dong, and Ridge Hill; two picture of himself; an eyewitness statement; excerpts from articles titled, "Fighting on the Brink: Defense of the Pusan Perimeter" (page 228), "A Soldier Remembered," and "Drive to the 38th and the Chong-Yong"; and his Authorization Form to a Member of Congress.
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 military 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 Army records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record and documentation submitted by the applicant for the Board to conduct a fair and impartial review of this case.  

3.  The applicant's available records show that he enlisted in the Regular Army, in pay grade E-1, on 23 September 1948.  He completed training in military occupational specialty (MOS) 1745, Rifleman.  He served in Korea from May 1950 to June 1951.

4.  In a letter sent to his parents, dated 5 August 1950, the applicant wrote he had been nicked below the left eye during the previous night by a sniper.

5.  The applicant provides copy of General Orders Number 28, dated 17 March 1951, announcing award of the Bronze Star Medal with "V" Device, to him, for heroic achievement, in connection with military operations against an enemy of the United States, on 16 February 1951.

6.  Item 29 (Wounds Received as a Result of Acton with Enemy Forces), of the applicant's DD Form 214, has the entry, "NA."

7.  The applicant was honorably discharged from active duty at the expiration of his term of service, in the rank of sergeant, on 22 May 1952.  Entries on his DD Form 214 do not show award of the Purple Heart.  Item 27 (Decorations, Medals, Badges, Commendations, and Campaign Ribbons Awarded or Authorized) lists the following awards:  the Army Occupation Medal; the Combat Infantryman Badge; the Bronze Star Medal; the Korean Service Medal, w/ 5 bronze service stars; and the Good Conduct Medal.
8.  The copy of the article taken from a newspaper, "Korean War Hero Back in Austin for Brief Visit" appears to have been written by the author based on General Orders Number 28, dated 17 March 1951, and the applicant's personal account, or the report of his parents.  In the absence of information such as, "The Army has reported that …" this information cannot be considered as having come from an official Army or Department of Defense source.

9.  The applicant enlisted in the United States Air Force 14 July 1955 and served continuously until his separation for the purpose of retirement on 30 November 1971.

10.  The Office of The Surgeon General hospital admission card (microfiche 030, page 141) for the period 1950-1953 (Korea) shows that while serving in Korea, the applicant was hospitalized for three days on 13 September 1950 and was then returned to duty for general service.  The hospital admission card does not show he was wounded as a direct result of action against or by an organized enemy.  The diagnosis entered on the record is, "Refractive errors, not elsewhere classified."  A causal determination was not made.

11.  There are no orders or evidence in the applicant’s available records that show he was awarded the Purple Heart, with two Oak Leaf Clusters.  There is also no evidence in his available records which indicates he was wounded or treated for wounds on three different occasions as a result of hostile action.  

12.  The applicant provided a copy of a witness statement, dated 12 March 2001, that was submitted with his statement and request to the VA.  In the statement, a former service member of the applicant's unit stated, in effect, the applicant was slightly wounded on the left cheek by sniper fire for which he sought no medical attention.  The applicant was also struck on the upper left arm by shrapnel from a North Korean Russian T-34 Tank 85 MM Cannon that was aimed at a United States tank.  Shrapnel hit the edge of the applicant's foxhole and a medic treated his bleeding wound.  The witness also stated, in effect, that in November 1952, Company F, his unit, moved out in a fighting withdrawal, the Chinese were shelling them with mortars, and the applicant was struck in the left knee.  He states, he heard the applicant yell for a medic.  Someone came and removed the shrapnel with tweezers, bandaged the applicant's leg, and left.  He does not believe the medic made a record of this incident as so many things were happening and the only thing that was important was to withdraw quickly.

13.  The article "Fighting on the Brink: Defense of the Pusan Perimeter," provided by the applicant, states that when enemy tanks and guns attacked that evening, the applicant's foxhole was showered with rocks and dirt and the applicant was slightly wounded.
14.  On 6 March 2008, the applicant requested and authorized a Member of Congress to act on his behalf and to receive information regarding correction to his DD Form 214, dated May 1952, to add the award of the Purple Heart, with two Oak Leaf Clusters.

15.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against the enemy or 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 medical personnel, and the medical treatment must have been made a matter of official record.

16.  Army Regulation 600-8-22, also provides that a Purple Heart is authorized for the first wound suffered under the above conditions, but for each subsequent award, an Oak Leaf Cluster will be awarded.

DISCUSSION AND CONCLUSIONS:

1.  By regulation, to be awarded the Purple Heart, it is necessary to establish that a Soldier was wounded or injured in action.  There is no evidence of record, and the applicant has provided insufficient evidence, which shows that he was awarded the Purple Heart or that he was wounded or treated for wounds on three occasions as a result of hostile action in Korea.  Based on the foregoing, the applicant does not meet the regulatory requirement for award of the Purple Heart or the award of Oak Leaf Clusters to be affixed to this award; therefore, he is not entitled to these awards.  

2.  The applicant's contentions and apparent disagreement with the criteria for awards of the Purple Heart have been noted.  However, they are insufficient reasons to change the criteria making the applicant eligible for awards of the Purple Heart.  

3.  In all cases, the burden of proof rests with applicants to submit substantiating proof of their entitlement for requested awards to include the Purple Heart.  The statements submitted by the applicant's alleged eyewitness was carefully considered.  While the information appears to line up insofar as dates, times, and locations are concerned, there is an insufficient lack of corroborating evidence to verify the eyewitness's statement.  In the absence of corroborating evidence, his request must be denied.

4.  The evidence of record and the evidence submitted by the applicant failed to support his contention that he was wounded as a direct result of enemy action on three occasions in Korea.  An SGO Hospital Admission Card shows the applicant was treated for a refractive error but a causal determination was not made.  Without evidence that he was treated for a wound or wounds received as a direct result of enemy action and that his injuries were made a matter of official record, the applicant is not entitled to award of the Purple Heart, with two Oak Leaf Clusters, or changing the criteria for this award so he is eligible for the awards.  

5.  Careful consideration was given to the documentation provided by the applicant.  However, given the lack of any corroborating evidence of record from other official sources, these documents alone are not sufficient to meet the regulatory burden of proof necessary to support the awards of the Purple Heart. 

6.  In view 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:

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.



      _________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)                                         AR20080005267



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080005267


4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1