IN THE CASE OF:	  

		BOARD DATE:	        07 AUGUST 2008

		DOCKET NUMBER:  AR20080009591 


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. 

2.  The applicant states, in effect, that he received a head injury during combat in Korea on 18 October 1951 and should have been awarded the Purple Heart.  Additionally, he suffered frostbite in both feet. 

3.  The applicant provides an unauthenticated third party statement from a former member of his unit who states that he believes the applicant received a concussion when his head hit a rock while diving from a mortar shell exploding and that the applicant complained of headaches.  He also states that the applicant had frostbite in both feet.  He also provides a copy of his separation medical examination.

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 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.

3.  The applicant was inducted in Ackley, Iowa on 12 March 1951.  He completed his training and was transferred to Korea for assignment to Company M, 5th Regimental Combat Team.  He was promoted to the rank of corporal on 6 May 1952.  

4.  After serving 11 months and 3 days of foreign service he was returned to Camp Atterbury, Indiana, where he was honorably released from active duty on 11 December 1952.  He had served 1 year and 9 months of total active service and was awarded the Combat Infantryman Badge, the Korean Service Medal with two bronze Service Stars, and the United Nations Service Medal.  Block 29 of his Report of Separation from the Armed Forces of the United States
(DD Form 214), under “Wounds Received as a Result of Action with the Enemy” shows the entry “None.”  

5.  The separation medical examination provided by the applicant indicates in block 73, Notes (continued) and Significant or Interval History that the applicant “wears glasses; aching in anterior chest – constantly.  Present since July; Frostbite – right foot – Korea – March 1952; and Malaria – Korea – March 1952.”

6.  A review of the available records, as well as the Korean Casualty File, fails to show that the applicant was wounded or injured as result of enemy action or that he was treated for any such wounds/injuries. 

7.  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.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are frostbite or trench foot injuries, battle fatigue and heat stroke. 


8.  Army Regulation 600-45 (Decorations), which governed the award of Army decorations until 23 August 1951, stated that for the purpose of considering an award of the Purple Heart, 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 enemy.  An “element” pertains to weather and the award of this decoration to personnel who were severely frostbitten while actually engaged in combat is authorized.

DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant’s claim to entitlement of the award of the Purple Heart is not in doubt, there simply is insufficient evidence to establish that he was treated for his wounds/injuries and that such treatment was made a matter of record. 

2.  While award of the Purple Heart for frostbite was authorized at the time, it was only authorized in those cases of extreme frostbite sustained while actually engaged in combat.  There simply is insufficient evidence to establish if he qualified under the criteria at the time.    

3.  Therefore, in the absence of evidence to establish that he was wounded as a result of enemy action, that he was treated by medical personnel for those wounds, and that the treatment was made a matter of record, it must be presumed, especially considering the passage of time that has occurred (50+ years) that what the Army did at the time was appropriate.  

4.  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 the aforementioned requirement.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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 for correction of the records of the individual concerned.

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 the United States during the Korean War.  The applicant and all Americans should be justifiably proud of his service in arms.



      ___        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)                                         AR20080009591



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080009591



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1