IN THE CASE OF:	  

		BOARD DATE:	       5 February 2009

		DOCKET NUMBER:  AR20080016115 


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, correction of his military records to show award of the Purple Heart for wounds received in action on 29 May 1951 in the Republic of Korea.  He further requests, in effect, correction of his Report of Separation from the Armed Forces of the United States (DD Form 214) to show award of the Good Conduct Medal.

2.  The applicant states, in effect, that he sustained an injury to the groin from a concussion grenade and received medical treatment. 

3.  The applicant provides a copy of a certificate indicating that General Orders Number 070, 7th Infantry Division, dated 24 April 1951, awarded him a Korean coin for gallantry; copies of clinical records, dated from 16 June 1952 through
12 August 1952, including Standard Form 539 (Abbreviated Clinical Record), Standard Form 516 (Operation Report), Standard Form 509 (Doctor's Progress Notes), Standard Form 502 (Narrative Summary), WD MD Form 55A (Clinical Record Brief), WD AGO Form Number 8-24 (Reports Control Symbol MED 19), and WD AGO Form 8-225 (Untitled); a VA Form 8-526 (Veteran's Application for Compensation or Pension),  date stamped 23 November 1952; a letter, subject: Transfer of Records, dated 14 May 1953; two VA Forms 21-4138 (Department of Veterans Affairs (VA) - Statement in Support of Claim), dated 10 July 1997 and
5 March 1999; and a letter from the VA, dated 17 June 1999.




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 for review.  A fire destroyed approximately 18 million service member's records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, there are sufficient documents available to conduct a fair and impartial review of this specific request. 

3.  The applicant's DD Form 214 indicates:

	a.  that the applicant enlisted in the Regular Army on 20 May 1949;

	b.  that he served overseas for a period of 1 year, 8 months, and 29 days;

	c.  that on 7 July 1951, he was promoted to the rank of sergeant first class (SFC), pay grade E-6 at the time;

	d.  that he had not received any wounds as a result of enemy action; and

   e.  that he completed 3 years, 3 months, and 5 days of creditable active duty service and was discharged at the expiration of his term of service (ETS) on 
25 August 1952.

4.  General Orders Number 070, 7th Infantry Division, dated 24 April 1951, by order of the Company H platoon sergeant, cited the applicant for distinguishing himself by gallantry in action against an armed enemy near Chuchon-Ni, Korea on 20 February 1951.  He and his machine gun squad were subjected to an enemy counterattack.  During the ensuing fire fight, the applicant reorganized his squad and personally used a 1918 air cooled 

machine gun to place effective fire on the advancing enemy.  After his supply of ammunition was exhausted, he continually exposed himself by standing in the face of the withering enemy to throw hand grenades.  When the enemy began to withdraw, he used an M-2 carbine to deliver effective fire.  The applicant was awarded a Korean coin for his actions.  This document does not indicate that the applicant received any wounds during this incident.

5.  A review of the Morning Reports for H Company, 17th Infantry Regiment, during the period from 11 April through 7 July 1951 provided:

	a.  that on 11 April 1951 the applicant was reported as having been assigned to H Company effective 7 March 1950;

	b.  that on 19 April 1951, the 11 April 1951 Morning Report was corrected to show his correct service number;

	c.  that on 2 May 1951, the applicant's duty status was reported as changed from duty to temporary duty effective 26 April 1951.  He was attached to a medical company for quarters and rations;

	d.  that on 30 May 1951, the applicant's duty status was reported as changed from TDY in Japan to duty effective 3 May 1951; and 

	e.  that on 7 July 1951, the applicant was promoted to the rank of SFC.

6.  The medical documentation provided by the applicant shows that:

	a.  on 16 June 1952, the applicant complained of a small morning drip for a couple of years.  He was diagnosed with having prostatitis - urethritis (inflamed condition of the prostate and urethra) and a right inguinal hernia (protusion of hernia sac) and right hydrocele (a tumor or swelling with accumulation of fluid in a saclike cavity).  He was prescribed medication for the inflammation and surgical counseling for the hernia condition.  None of the documents indicated the cause or circumstances for the applicant's conditions;

	b.  on 8 July 1952, the applicant was admitted for surgery;

	c.  on 18 July 1952, the applicant underwent hernioplasty to correct a right inguinal hernia.  The operation was successful and the applicant was returned to the recovery ward;

	d.  on 29 July 1952, the applicant was placed on 10 days of convalescent leave and then returned to duty; and
	e. On 12 August 1952, a medical history report was rendered.  It stated that approximately one year earlier, the applicant had noticed a swelling of the right side of his scrotum that had progressively increased in size and had become very tender and uncomfortable.  The applicant had been hospitalized in Korea and placed on bed rest, but was given no other treatment.  This report does not indicate any cause or circumstance for his condition.

7.  On 29 August 1952, 4 days after his ETS, the applicant submitted a VA 
Form 8-526 for compensation and/or pension.  In Item 23 of this form the applicant indicated that he had received treatment at the 7th Medical Battalion in Korea on 29 May 1951 for a concussion injury.  There is no explanation regarding the source of the concussion.

8.  A letter addressed to the Director, Administrative Operations Service, Veterans Administration Central Office, Washington, D.C., dated 14 May 1953, indicates, in part, that the "Disp clinical dated 5-29-51 Changgo-ri N. Korea, 2nd Bn Aid Sta "hemoticele right testicle" 17 Med Co." was attached.  This document is not currently available for review by the Board.

9.  On 10 July 1997, the applicant submitted a VA Form 21-4138, requesting service-connection for residuals of an explosion during his active duty service in the Republic of Korea.  He stated that he had been injured by the concussion of a grenade resulting in the swelling of his scrotum.

10.  On 5 March 1999, the applicant submitted a VA Form 21-4138, wherein he responded to a "Post Traumatic Stress Disorder Questionnaire."   In response to being questioned about receiving any wounds, he stated that a hand grenade had exploded between his legs and that he had been taken to the aid station for treatment, but never received the Purple Heart.

11.  On 17 June 1999, the VA informed the applicant of their rating decision.  A part of that correspondence included the applicant's discussion of his experiences spent in combat in the Republic of Korea.  It specifically states, "the veteran's C file contains various documents documenting the experience of his combat unit but it also includes a "citation for gallantry" for [the applicant's] exemplary behavior under enemy fire.  Being wounded with shrapnel in the groin area, [he] was evacuated and eventually discharged from the military…."   

12.  Army Regulation 600-8-22 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.
13.  Army Regulation 600-65 (later superseded by Army Regulation 672-5-1), in effect at the time, provided policy and criteria concerning service medals.  It stated that the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 
27 August 1940, for first award only, 1 year served entirely during the period 
7 December 1941 to 2 March 1946 and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  At the time, a Soldier's conduct and efficiency ratings must have been rated as "excellent" for the entire period of qualifying service and there must have been no convictions by court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was wounded in action by a concussion grenade and is entitled to award of the Purple Heart.

2.  The available evidence clearly shows that the applicant did suffer from a right inguinal hernia and underwent a surgical procedure to correct his condition.  However, the available evidence does not sufficiently show that enemy action was the proximate cause of his medical condition.   

3.  The applicant’s records clearly show that he served on active duty for a qualifying period of time for award of the Good Conduct Medal.  However, there are no available records showing that his conduct and efficiency ratings were "excellent" for the entire period of qualifying service and that he had not been convicted by court-martial.

4.  Regrettably, in view of the above the applicant's request for award of the Purple Heart and Good Conduct Medal should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ________  ___X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ____X___  ________  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the majority of the Board determined during their review that the available evidence is sufficient to warrant a recommendation for partial relief.  There is no adverse information available to preclude award of the Good Conduct Medal.  The Soldier met the required time for the award and the evidence indicates he served in Korea during hostilities. 

2.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding him the Good Conduct Medal for the period 20 May 1949 to 19 May 1952 and adding this award to his DD Form 214.

3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the Purple Heart.



      _________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)                                         AR20080016115



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ABCMR Record of Proceedings (cont)                                         AR20080016115



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