IN THE CASE OF:	  

		BOARD DATE:	       16 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080006682 


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, that his records be corrected to show that he was awarded the Purple Heart with two Oak Leaf Clusters.

2.  The applicant states that over a battle time of 30 minutes, he was shot three separate times.  He states that he was unfamiliar with the regulation governing the award of the Purple Heart.  He states that he was not conscious through his evaluation and whoever recorded his wounds was not aware of the manner in which they were received.  He states that he took three bullet wounds across his shoulder, all three completely through.  He states that the last bullet incapacitated him as the objective was captured minutes after the second shot.  He states that a corporal witnessed all three shots and relates them in his statement in support of his “nomination” for the Medal of Honor.  He states that he has six entry and exit scars.

3.  The applicant provides in support of is application, a self authored letter dated 31 March 2008, addressed to the Army Review Boards Agency, regarding the status of his Application for Correction of Military Records; and a copy of his Report of Separation from the Armed Forces of the United States.

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.  On 16 February 1946, the applicant enlisted in the Army at El Paso, Texas, for 18 months, in the pay grade of E-1.  He was honorably discharged on 30 October 1946, for the Convenience of the Government, to accept an appointment as a second lieutenant in the United States Army Reserve.

3.  The applicant accepted his appointment on 31 October 1946.  He was transferred to Korea on 30 January 1947.  

4.  He returned to the Continental United States on 13 January 1949 and he was assigned to Fort Ord, California.

5.   The applicant’s records show that he was again transferred to Korea on 10 February 1951.  On 17 October 1951, he was wounded as a result of enemy action while he was in Yonchon Korea.  His Casualty Report shows that a missile that was fired from an enemy mortar landed and exploded near his position, fragments from which stuck him causing his wounds.   According to the Casualty Report, he was struck in both shoulders. 

6.  On 18 October 1951, the applicant returned to the Continental United States and he was hospitalized at Camp Atterbury, Indiana. 

7.  The applicant was released from active duty (REFRAD) on 31 July 1954.  The DD Form 214 that he was furnished at the time of his REFRAD shows that he was awarded the American Theater Campaign Ribbon, the World War II Victory Medal, the Army of Occupation Medal (Korea), the Combat Infantryman Badge, the Purple Heart, the Korean Service Medal with three Bronze Service Stars, the United Nations Service Medal, and the National Defense Service Medal.

8.  On 2 February 2005, the applicant’s records were corrected to include the award of the Silver Star.

9.  A review of the available records does not show that the applicant was ever wounded a second time as a result of hostile action by enemy forces while he was in the Army.
10.  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 medical personnel, and the medical treatment must have been made a matter of official record.  The Purple Heart is authorized for the first wound suffered under conditions indicated above, but for each subsequent award an Oak Leaf Cluster will be awarded to be worn on the medal or ribbon.  Not more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent.

DISCUSSION AND CONCLUSIONS:

1.  A review of the applicant’s records does not show that he was ever wounded during a second incident while he was on active duty.

2.  Although he sustained more than one wound during the incident that occurred on 17 October 1951, he was awarded the Purple Heart for the wounds that he received as a result of hostile action by the enemy on that day from the same missile explosion.

3.  In accordance with the applicable regulation not more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent.  Therefore he is not entitled to additional awards of the Purple Heart.

4.  In order to justify correction of a military record the applicant must show 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.

5.  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

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                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)                                         AR20080006682



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ABCMR Record of Proceedings (cont)                                         AR20080006682



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