IN THE CASE OF:
BOARD DATE: 12 August 2008
DOCKET NUMBER: AR20080008967
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 that he be awarded the Purple Heart for an injured back sustained in Korea in September 1950.
2. The applicant states that he was thrown from the vehicle because an enemy ambush forced the driver to make a violent maneuver. He was thrown out along with the .30 caliber machine gun and he managed to drive the enemy away with that "tremendous" weapon. He was not able to report his back injury to medical personnel until August 1951. His back problem has continued to deteriorate throughout the years.
3. The applicant provides copies of his own self-serving statement and a
30 January 2007 Department of Veterans Affairs (VA) disability compensation decision.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant entered the Army National Guard in June 1948 and enlisted in the Regular Army in September 1949. In September and October 1959 he served in Korea with H Company, 29th Infantry Regiment.
3. A 26 June 1951 medical treatment record entry indicates he sought help because of back pain and reported that he fell off a Jeep in September 1950.
4. He was discharged as a sergeant in September 1952 to accept a United States Army Reserve (USAR) commission. His DD Form 214 (Report of Separation from the Armed Forces of the United States) shows his authorized awards as the Army of Occupation Medal, Korean Service Medal with two bronze service stars, United Nations Service Medal and the Combat Infantryman Badge. He retired from active duty as a USAR lieutenant colonel on 30 September 1969.
5. On the Report of Medical History (Standard Form 89) that he submitted for his retirement physical examination the applicant wrote "Back Injury-1950 in Korea. Fall out of vehicle (jeep) from a standing position. Fell on my back in a couple [sic] position with a heavy .30 cal machinegun. Fall caused by jeep jerking as a result of a ambush by N. Koreans."
6. The applicant's name does not appear on the Korean Casualty File.
7. 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 an 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant sustained a back injury which required medical treatment. Unfortunately, because the applicant's own assertions are the only substantiation for a combat origin of the injury, this situation does not meet the regulatory requirements for the Purple Heart.
2. 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.
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.
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