IN THE CASE OF:	  

		BOARD DATE:	        18 February 2009

		DOCKET NUMBER:  AR20080018322 


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 his deceased brother, a former service member (FSM), be awarded the Purple Heart. 

2.  The applicant states that the FSM was killed under unclear conditions in Korea and that his records show he had a shrapnel wound at the time of his death.

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  A self-authored letter, dated 18 August 2008.

	b.  A letter of support, dated 16 October 2008, from the Director of Veterans Services, Brookline, Massachusetts (MA).

	c.  Report of interment, dated 22 April 1951.

	d.  NA Form 13038 (Certification of Military Service), dated 14 October 2005.

	e.  Western Union message, dated on an unknown date in 1951.

	f.  Various letters, dated on miscellaneous dates, to/from Members of Congress and to/from the U.S. Army Human Resources Command (HRC)-Alexandria, VA.

	g.  Extracts of newspaper articles, photographs, and announcements.

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 FSM’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 FSM’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 FSM was born on 28 October 1929.  He joined the U.S. Air Force (USAF) in July 1948 and received training at Lackland Air Force Base, San Antonio, Texas.  After his release from the USAF, he entered the Army on 27 September 1950 and subsequently served in Korea.  He was assigned to Company C, 62nd Engineer Construction Battalion in Korea.  His rank/grade was private first class (PFC)/E-3. 

4.  On 30 March 1951, the tactical situation in Korea placed the forward edge of the battle area from Munsan in the west to Chunchon in the east, some 25-30 miles north of Seoul and the Han River.  At that time, the FSM was working on a bridge over the Han River in Korea when the trestle gave way and the crane fell into the river possibly pinning him underneath.  He was initially reported as absent in a pay status until 18 April 1951 when his body was recovered.  

5.  On 22 April 1951, a Report of Interment submitted by the American Graves Registration Service Group, Korea, shows the FSM was buried on 22 April 1951 at the United Nations Military Cemetery, Tanggok, Korea.  This report shows that the cause of death was “shrapnel wound to left leg.”

6.  On 30 April 1951, by message to The Adjutant General, Headquarters Department of the Army, Washington DC, the Commander-in-Chief, Far East (CINCFE), Tokyo, Japan, reported the FSM’s death as a Korea non-battle casualty caused by drowning, with traumatic amputation of the lower extremity.  The report stated the body had been recovered and that a final line of duty determination had been made.

7.  On 9 May 1951, by letter, The Adjutant General of the Army notified the FSM’s next of kin that the official casualty report showed that the FSM died on 30 March 1951 in Korea as the result of drowning, with traumatic amputation of the lower left extremity incurred when the trestle of the bridge on which he was working gave way and a crane fell into the Han River.

8.  The FSM’s final DA Form 52-1 (Report of Death), dated 21 June 1951, shows the cause of death was determined to be drowning with traumatic amputation to the left lower extremity.  

9.  On 28 August 1951, a Board of Officers was convened at Zone Headquarters, American Graves Registration Service Group, 8204th Army Unit, Korea, and after consideration of the FSM’s identifying factors (fingerprints, dental comparison, I.D tags, height, color of hair, religion, and personal effects), the Board of Officers approved the identification of the FSM.  The Board of Officers also listed evidence of a wound to the left leg during processing and stated that there was no indication where the FSM’s unit was operating at the time of death.

10.  The applicant noted that the report of interment, dated 22 April 1951, indicated that the FSM had a shrapnel wound to the left leg at the time of death.  This led the applicant to believe that even though his brother drowned as a result of the bridge collapse, he may have been involved in action with the enemy and sustained a wound as a result of that engagement.  Thereafter he began a campaign to have his brother recognized for award of the Purple Heart.  He started his efforts in 2005 by communicating with various Members of Congress, the Office of Legislative Liaison, HRC-Alexandria, the National Personnel Records Center, and Directors of Veterans' Services.  His efforts led to dedicating a memorial square in Brookline, MA, in the FSM’s name to honor his sacrifice.  

11.  On 23 September 2008, by letter, the Chief, Military Awards Branch, HRC-Alexandria, VA notified the applicant that after a careful review of the documentation submitted by him, it was determined that the collapse of the 

bridge was not influenced by enemy action or sabotage and that the report of interment erroneously showed the date of death as 17 April 1951 as a result of a shrapnel wound to the leg, but the evidence suggests that the FSM died on 30 March 1951 as a result of drowning.

12.  The information compiled by the Office of the Surgeon General (OTSG), dated 11 June 1998, shows that the FSM died in Korea on 30 March 1951 and that the cause of death was "Non-battle drowning and submersion." 

13.  In a self-authored letter, dated 18 October 2008, the applicant describes his efforts in seeking award of the Purple Heart for his brother.  He emphasizes that he does not and never has disputed that the final cause of the FSM’s death was drowning.  However, some reports state that the cause of death was a “shrapnel wound” while others state that the FSM was “killed in action.”  This opens the possibility that the FSM was wounded prior to the bridge collapsing and which eventually led to his death.  He adds that this Board should conduct a thorough analysis of all the facts and circumstances surrounding the FSM’s death and reexamine all available documents and evidence before it reaches its conclusion.

14.  In a letter dated 16 October 2008, a director of veterans services states that as a former Army officer, he is familiar with the requirements for award of the Purple Heart and as a director of veterans services, he has met with several recipients of the Purple Heart and did not feel comfortable that their wounds met the standards for that honor.  He adds that he believes the spirit of this award has been met by the FSM’s sacrifice and that awarding it to the FSM will not diminish its value, but rather bring honor to someone who made the ultimate sacrifice for this country.

15.  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.

16.  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 been treated by medical personnel, and the medical treatment must have been made a matter of official records. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his deceased brother, the FSM, should be awarded the Purple Heart.

2.  The evidence of record shows that the FSM was an engineer working on a bridge over the Han River on 30 March 1951.  At that particular time during the Korean War, the forward edge of the battle area was some 25-30 miles north of the Han River; therefore, it is presumed the bridge construction was proceeding without enemy interference.

3.  Unfortunately for the FSM, on 30 March 1951, while he was working on a bridge over the Han River, a trestle gave way causing a crane to fall on top of him in the river.  The crane pinned the FSM underwater and caused a traumatic amputation of his left leg.  There is no evidence, conclusive or otherwise, that the collapse of the bridge was caused by hostile action, such as mortar, artillery, or other explosions.  Therefore, the collapse of the bridge and the FSM’s resultant death, though tragic, appears to have been an accident and does not meet the criteria for award of the Purple Heart.

4.  It is unfortunate that initial reports of the FSM’s death mentioned shrapnel wounds as the cause of the loss of his leg.  However, later reports, including the final determination by the Office of The Adjutant General establish that the FSM died as a result of an accidental bridge collapse and that his leg injury was due to a heavy crane falling on him.

5.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria.  When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.  Enemy-related injuries which justify the award of the Purple Heart include injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed land mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused 
by vehicle or aircraft accident resulting from enemy fire; and concussion injuries caused as a result of enemy generated explosions.  Injuries or wounds which do not qualify for award of the Purple Heart include accidents such as explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; and/or self-inflicted wounds. 

6.  There is no evidence in his reconstructed service personnel records which shows he was wounded or injured as a result of hostile action.  Regrettably, absent evidence which conclusively shows that the FSM sustained wounds or injuries as a result of hostile action there is insufficient basis for awarding the Purple Heart to the FSM in this case.

7.  There are no words that can ease the applicant’s loss even today, more than 50 years after the tragic events that led to the death of his brother.  Losing a loved one is one of the hardest things for anyone to go through.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the FSM 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.


															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)                                         AR20080018322



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080018322



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1