IN THE CASE OF:	  

		BOARD DATE:	       16 October 2008

		DOCKET NUMBER:  AR20080012419 


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 award of the Purple Heart. 

2.  The applicant states that he was injured as a result of enemy action in Korea. 

3.  The applicant provides further documentary evidence through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be awarded the Purple Heart for injuries sustained as a result of enemy action when a North Korean grenade exploded and shrapnel was lodged in the applicant's head.  He was initially treated for that injury on the battlefield and was subsequently treated at a Department of Veterans Affairs (DVA) facility and his treatment is documented in his records.

2.  Counsel states that the applicant was assigned to Company B, 21st Infantry, 24th Infantry Division, in Korea when he sustained his injury.  Counsel also adds the following:

	a.  about a month before he left Korea, the applicant's unit was holding a hill overlooking a main road that the North Korean Army sought to use.  After three days of tank and mortar attacks, the applicant's position was overrun.  During the course of his retreat, the enemy rolled hand grenades down, one of which struck the applicant in the back, bounced up, and exploded.  As a result, shrapnel was embedded in his head.  A medic removed a piece of shrapnel from his scalp and later, at the DVA hospital, additional shrapnel was removed.  Thus, the preponderance of evidence shows that the applicant's wound was a result of enemy action.

	b.  The applicant was initially treated on the battlefield and later at the DVA hospital in the Bronx, New York.  At the time he was injured, his friend placed a wound compress on his head at the site of his injury.  Later, when he rejoined his unit, an Army medic examined his wound and discovered and removed a piece of shrapnel from his head.  The medic gave him a tag and directed him to go to the aid station.  However, the applicant elected to rejoin his unit instead, and gave the tag to his unit first sergeant.  Upon his return to the United States and treatment to the DVA, it was noted in his records that his headache was due to shrapnel wound in the back of his head in 1950 while in Korea.

	c.  The treatment was documented on a tag filled out by a medic on the battlefield and the DVA hospital.  It would be unjust if the Purple Heart is denied simply because the record of treatment is shown on the DVA records instead of the Army records.  

3.  Counsel provides the following additional documentary evidence in support of the applicant's request:

	a.  DD Form 214 (Report of Separation from the Armed Forces of the United States), dated 30 November 1950.

	b.  DA Form 24 (Service Record), dated 9 January 1951.

	c.  Applicant's sworn affidavit, dated 16 June 2008.

	d.  Department of Veterans Affairs Clinical Records, dated 13 June 1951.

	e.  Letter, dated 25 August 2003, from the National Personnel Records Center (NPRC).

	f.  Extract of an Internet Printout, dated 13 July 2008, regarding a perimeter battle in Korea.

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's DD Form 214 shows that he entered active duty in New York City, New York, on 21 March 1949, in the rank/grade of a Recruit/Grade 1 (PVT/E-1) and that he was trained in military occupational specialty (MOS) 4745 (Light Weapons Infantry).  This form also shows he served with Company B, 21st Infantry Regiment.

4.  The applicant’s DD Form 214 further shows that he completed 1 year, 8 months, and 10 days of creditable military service, 1 year, 3 months, and 3 days of which was foreign service.  He was honorably separated in the rank/grade of corporal (CPL)/Grade on 30 November 1950.

5.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 shows he was awarded the Army of Occupation Medal with Japan Clasp and the Combat Infantryman Badge.  Item 27 does not show award of the Purple Heart.

6.  Item 29 (Wounds Received As a Result of Action with Enemy Forces) of the applicant’s DD Form 214 shows the entry “None.” 

7.  The applicant’s reconstructed records do not contain General Orders awarding him the Purple Heart.

8.  The applicant's medical records are not available for review with this case.

9.  The applicant’s name is not shown on the Korean Casualty File.

10.  Section 8 (Wounds Received Through Enemy Action) of the applicant's DA Form 24 contains a blank entry.
11.  In his self-authored statement, the applicant states that:

	a.  He arrived in Korea on 2 July 1950 and was subsequently assigned to B Company, 21st Infantry Regiment.  After several engagements with the enemy, his company was holding a hill which overlooked a main road that the enemy wanted to use.  However, the enemy was held for three days before it attacked by several tanks and artillery, followed by infantry soldiers that overran their weakened position.  The unit suffered heavy casualties and the applicant's squad was down to 5 members.

	b.  As he and a friend withdrew, the enemy rolled down hand-grenades on them, one of which was coming right on them, so, he pushed his friend down to the ground and fell on top of him just as the grenade struck him in the back and bounced off exploding over them.  His friend noticed that the applicant was bleeding and used a wound compress until a medic looked at the wound and determined that a piece of shrapnel was protruding from his scalp.  The medic removed the one piece of metal, but there was other shrapnel embedded in the back of the head.  Again, the medic dressed the wound with a compress and gave him a tag with a string on it.  The applicant reported the incident to the unit first sergeant who took the tag and told the applicant he was adding his name to the Purple Heart list.  

	c.  After discharge, he became ill with malaria and intestinal problems and was treated at a DVA hospital.  During his examination, it was discovered that he had additional grenade shrapnel on the back of his head that was not treated and was subsequently extracted by surgery.

12.  The applicant submitted a copy of the DVA Clinical Record-Operation Report, dated 17 July 1951, which shows the applicant underwent an excision of shrapnel in the scalp and that he had a small jagged metallic foreign body in the subcutaneous tissues of the post occipital region.

13.  The Purple Heart was established by General George Washington at Newburgh, New York on 7 August 1782 during the Revolutionary War.  It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action.



14.  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, and the medical treatment must have been made a matter of official record.  This regulation further states that there is no time limit on submission of requests for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The request for award of the Purple Heart submitted by the applicant and his counsel and the evidence presented was carefully considered; however, it is insufficient to award the applicant the Purple Heart in this case.  There are no general orders that show the applicant was awarded the Purple Heart and there is no evidence in his service personnel records that shows that he was wounded or injured as a result of hostile action or treated for such wounds. 

2.  With respect to counsel's arguments:

	a.  The applicant's memoirs or recollection of events that happened over 58 years ago are insufficient for award of the Purple Heart.  Substantiating evidence must be provided to verify that the wound was the result of hostile action.  It is unclear from the applicant's memoirs if the grenade was from an enemy or a friendly source.

	b.  There is no record, such as the medic's affidavit or the first sergeant affidavit, that the applicant was treated in the field for the alleged wound or that he was issued a tag.  Furthermore, there is no evidence that the shrapnel that the applicant states was removed from his scalp was shrapnel that was sustained as a result of enemy action.

	c.  There are no medical records to show the applicant was wounded as a result of enemy action and was treated for such wound.  Again, regulatory guidance requires that medical treatment for wounds or injuries received in action must have been made a matter of official record.  There is no indication in the Army official records that the applicant was wounded in action or treated for this wound.  His subsequent DVA treatment is noted; however, it is insufficient by itself to show the applicant was treated for injuries received as a result of hostile action. 



3.  In the absence of documentation that shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case.  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 did not submit evidence that would satisfy that requirement.  Therefore, the applicant is not entitled to relief

4.  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 our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  

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.



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               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)                                         AR20080012419



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ABCMR Record of Proceedings (cont)                                         AR20080012419



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