IN THE CASE OF:	   

		BOARD DATE:	        2 December 2008

		DOCKET NUMBER:   AR20080016032 


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, reconsideration of his earlier petition that his record be corrected to show his entitlement to the Purple Heart (PH) 2nd Oak Leaf Cluster (3rd Award).  

2.  The applicant states, in effect, that he was wounded three separate times during an engagement with enemy forces in Korea on 17 October 1951.  He claims he received a machinegun wound to his right shoulder in the assault, and ten minutes later he was shot again through the right shoulder by enemy machine-gunners, and then shot again through the left shoulder.  

3.  The applicant provides the following documents in support of his reconsideration request:  Self-Authored Letter; Third-Party Statement; Book Extract; and Department of Veterans Affairs (VA) Rating Decision Extract.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080006682, on 16 September 2008.


2.  During its original review of the case, the Board determined that although the applicant was wounded it found no evidence of record showing the applicant sustained more than one wound during the incident that occurred on 17 October 1951.  He was awarded one PH for the wounds that he received as a result of hostile action by the enemy on that day from the same missile explosion in accordance with the applicable regulation.  

3.  The applicant now provides a self-authored letter in which he argues that he sustained three separate wounds from machinegun fire during the 17 October 1951 engagement with enemy forces.  He outlines how and when he was wounded during the engagement in his letter.  He also provides a third-party statement from an individual who indicates he was serving with the applicant during the engagement in question and attests to the applicant being first wounded by mortar fire and then sustaining two more wounds from machinegun fire.  He also provides pages 2 and 3 of a 2007 VA Rating Decision, which indicates he was granted service-connection for gunshot wounds to muscle group II, left shoulder and muscle group 1, right shoulder.  The rating decision provides no information regarding the facts and circumstances surrounding how the wounds were sustained.  

4.  The applicant’s Officer Qualification Record (WD Form 66) shows he entered active duty as a second lieutenant (2LT) on 31 October 1946.  It also shows he served in Korea from 30 January 1947 through 6 January 1949, and again from
2 March 1951 through 18 October 1951.  Item 41 (Awards, Decorations and Citations) includes one award of the PH and confirms this award was made in general orders published by the 279th General Hospital.  

5.  The applicant’s record contains a Casualty Report that shows the applicant was wounded in action in Korea on 17 October 1951.  Item 20 (Remarks or Diagnosis) contains a statement indicating that at 1515 hours, 17 October 1951, while his company was in action against the enemy near Yonchun, North Korea, a missile fired from an enemy mortar landed and exploded near the applicant’s position.  Fragments from the same struck the applicant causing his wounds.  The report provides no information regarding separate wounds from different sources.

6.  On 31 July 1954, the applicant was honorably separated in the rank of captain.  The separation document (DD Form 214) he was issued at the time lists one award of the PH in Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) and contains the entry “Gunshot Wound-Lt humerus, rt shoulder 17 Oct 51 (Yonchon,Korea).”  The applicant authenticated the separation document with his signature in Item 48 (Signature of Person Being Separated) on the date of his separation.  
7.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH.  It states, in pertinent part, that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action; that the wound required treatment by medical personnel; and a record of this medical treatment must have been made a matter of official record.  A wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions listed above.  A physical lesion is not required, however, the wound for which the award is made must have required treatment by medical personnel and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.  The regulations stipulates that 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.  The applicant’s request for reconsideration and the supporting new evidence and argument he provided has been carefully considered.  However, there is still an insufficient evidentiary basis to support award of more than 1 PH for the wounds the applicant sustained in Korea on 17 October 1951.

2.  By 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, and records of medical treatment must have been made a matter of official record.  

3.  In this case, the applicant’s record confirms that only one award of the PH was authorized for the wounds he sustained in Korea on 17 October 1951, and that this award was authorized in orders published by the general hospital where the applicant was being treated for his wounds.  Further, the casualty report on file confirms that the applicant’s wounds were sustained as a result of fragments from a missile explosion and fails to identify separate wounds from enemy machinegun fire.  Finally, the list of awards contained in Item 27 of the applicant’s DD Form 214 includes only one PH, and the applicant authenticated this document with his signature on the date of his separation.  In effect, his signature was his verification that the information contained on the DD Form 214 was correct at the time it was prepared and issued.  

4.  Absent any evidence of record to corroborate the applicant’s claim of entitlement to two additional awards of the PH and/or the information contained in his self-authored statement and the third-party statement provided, or that 
documents three separate incidents of the applicant being wounded in action in Korea on 17 October 1951, the regulatory burden of proof necessary to support additional awards of the PH still has not been satisfied in this case.  As a result, it would not be appropriate or serve the interest of all those who served in Korea and who faced similar circumstances to grant the requested relief in this case.  

5.  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 or that would support amendment of the original Board decision in this case. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20080006682, dated 16 September 2008.



      __________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)                                         AR20080016032



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ABCMR Record of Proceedings (cont)                                         AR20080016032



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