IN THE CASE OF:	  

		BOARD DATE:	       21 JULY 2009

		DOCKET NUMBER:  AR20090004398 


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 for wounds received on       8 April 1952.

2.  The applicant states, in effect, that he suffered an injury to his eye while being held as a prisoner of war (POW) in North Korea.  He adds that, on 8 April 1952, while working in the kitchen with another POW at the prison camp, an allied aircraft was flying over the camp.  The POWs were under strict orders to turn the lights off when they heard an aircraft.  The captors started yelling at him and another Soldier to turn the lights off but the other Soldier did not respond immediately.  The applicant ran to the light and tried to grab it.  He was then taken to an interrogation room and was accused of trying to signal the plane by waving.  After three hours of interrogation one of his captors became angry and struck him across the forehead with an unknown object, and he lost consciousness.  When he woke up, he realized that he had lost his vision in one eye.  He has been blind in his right eye since that incident.  When he was released from captivity, he was awarded disability compensation for blindness to his right eye. 

3.  The applicant provides a copy of an internet printout, dated 17 February 2009, from the U.S. National Archives and Records Administration; a copy of his Standard Form (SF) 88 (Report of Medical Examination), dated 16 December 1953; and a copy of his DA Form R-5695 (Medical Survey-Master Form-Repatriated American Prisoner of War), dated 12 August 1953.

4.  On 7 July 2009, the applicant submitted a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States), dated 17 December 1953, in support of his request.

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 enlisted in the Regular Army for a period of 3 years and he entered active duty at Fort Douglas, UT, on 
17 December 1948.  This form further shows that at the time of separation, the applicant held an infantry specialty and his most significant duty assignment was with Company E, 8th Regiment, 1st Cavalry Division. 

4.  The applicant’s DD Form 214 further shows he completed 5 years, and 1 day of creditable military service, of which 3 years, 1 month, and what appears to be 24 days of which was foreign service.  He was honorably discharged on 17 December 1953 in the rank/grade of sergeant (SGT)/E-5.

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 (Japan), the Korean Service Medal with four bronze service stars, the United Nations Service Medal, and the Combat Infantryman Badge (authorized by Special Orders Number 216 issued by Headquarters, 8th Cavalry, Korea, on 31 October 1950).  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.  Item 32 (Remarks) does not indicate the applicant was in a POW status or the dates of his captivity.

8.  The applicant's reconstructed records contain a copy of a letter, dated 18 April 1984, from the Veterans Administration and a copy of a DD Form 2510 (Prisoner of War (POW) Medal Application/Information), dated 10 December 1989, that show he was a POW in Korea from 2 November 1950 to 7 August 1953.

9.  The applicant’s WD AGO Form 8-26 (Supplemental Medical Record), dated 9 September 1950, shows he suffered various injuries on 5 and 6 September 1950, including contusions to his right hip, thigh, and leg; a blister to his foot; and a laceration/wound to his left hand while he was under enemy artillery fire at the Walled City, 15 miles north of Taegu, Korea.

10.  The applicant's FEC Form 303 (Report of Medical History in Captivity), dated 12 August 1953, shows he suffered an injury to his right eye on 8 April 1952 and that he suffered from dysentery and diarrhea for about a year after his capture.  

11.  The applicant's WD AGO Form 8-41 (Ophthalmologic Examination), dated 4 December 1953, shows the applicant stated that he had diarrhea and dysentery during the first few months of captivity and that on 8 April 1952, a small metal clothesline injured his right eye, evidently penetrating the eyeball.  

12.  The applicant's SF 502 (Narrative Summary), dated 4 December 1953, shows he was struck in the right eye in April 1952, while he was a POW and while he was fixing a clothes line wire that pierced through the globe, with blindness immediately afterward.  He subsequently developed lens opacity and on 10 November 1953, cataract extraction was performed.

13.  The applicant's WD MD Form 52 (Medical Report), dated 4 December 1953, shows the applicant suffered aphakia to his right eye following extra-capsular lens extract performed on 10 November 1953 at the U.S. Army Hospital, for relief of traumatic cataract to his right eye that occurred in 1951 while he was in POW status when the wire clothes line he was fixing pierced the globe of his right eye. 





14.  Information from the Hospital Admission Cards created by the Office of the Surgeon General (OTSG) shows the applicant suffered the medical conditions of contusion and/or blister to his leg/foot; contusion to the buttock and hip; and a wound/laceration to his hand, non-missile with no nerve or artery involvement on 6 September 1950 and traumatic cataract on 7 August 1953. 

15.  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 by medical personnel, and the medical treatment must have been made a matter of official record.  

16.  Section 521a of the National Defense Authorization Act of 1996, authorized award of the Purple Heart to any former POW who was wounded before 25 April 1962 while held as a prisoner of war or while being taken captive, in the same manner as a former POW who was wounded on or after that date.  Section 521b specifically stated that award of the Purple Heart for POWs under Section 521a shall be made in accordance with the standards in effect on the date of the enactment of this act to persons wounded on or after 25 April 1962.

17.  Review of the applicant's records indicates entitlement to additional awards which are not listed on his DD Form 214.

18.  Army Regulation 600-8-22 provides, in pertinent part, for award of the POW Medal.  The regulation states that the POW Medal was authorized on 8 November 1985 and is awarded to individuals who in past armed conflicts were taken prisoner or held captive.

19.  Army Regulation 600-8-22 provides that the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 through 27 July 1954, 1 January 1961 through 14 August 1974, 2 August 1990 through 30 November 1995 and 11 September 2001 to a date to be determined.  

20.  The Government of the Republic of Korea issued the Republic of Korea War Service Medal (ROK-KWSM) to pay tribute to eligible Korean War veterans for their historic endeavors to preserve the freedom of the Republic of Korea and the free world.  The Department of Defense approved acceptance and wear of the ROK-KWSM.  To qualify for award of the ROK-KWSM, the veteran must have served between 25 June 1950 and 27 July 1953 and been on permanent assignment for 30 consecutive days, or on temporary duty for 60 non-consecutive days, within the territorial limits of Korea, in the waters immediately adjacent thereto, or in aerial flight over Korea participating in actual combat operations or in support of combat operations.

21.  Army Regulation 635-5 (Separations Document) establishes the standardized policy for preparing and distributing discharge documents.  In pertinent part, it directs that, in the case of POWs, the unit of assignment, country and dates of capture and release will be entered in the "Remarks" section of the discharge document.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart for an eye injury sustained while being held as a POW.  

2.  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 the sole justification for the award.  

3.  The evidence of record shows the applicant suffered an accidental eye injury in April 1952, while he was a POW and while he was fixing a clothes line wire that pierced through the globe, with blindness immediately afterward.  The eye injury did not occur while he was being taken as captive and the evidence of record indicates it was not caused by his captors.  This accidental injury, therefore, does not qualify the applicant for award of the Purple Heart.

4.  Nevertheless, the applicant's reconstructed record shows that he suffered a laceration wound to his left hand on 6 September 1950 while he was under enemy artillery fire at the Walled City, 15 miles north of Taegu, Korea.  Additionally, the applicant’s information from the hospital admission card created by the OTSG confirms that he suffered such injury on 6 September 1950 in Korea and that he was treated at an Army medical treatment facility.  Therefore, there is sufficient evidence to show the applicant is entitled to award of the Purple Heart and correction of his records to show this award.  

5.  The evidence of record shows the applicant served a qualifying period for award of the National Defense Service Medal which is not shown on his records; therefore, he is entitled to correction of his records to show this award.

6.  The evidence of record shows the applicant completed 3 years, 1 month, and 24 days of foreign service.  As he was awarded the Combat Infantryman Badge on 31 October 1950, was wounded on 6 September 1950, and participated in three campaigns during his service in Korea, it is reasonable to presume he completed most, if not all, of his foreign service in Korea and he has therefore served a qualifying period for award of Republic of Korea War Service Medal and he is entitled to correction of his records to show this award. 

7.  The evidence of record shows the applicant was captured on 2 November 1950 in Korea and was released on 7 August 1953.  Therefore, he is entitled to award of the POW Medal and correction of his records to show this award.  Item 38 (Remarks) should also be corrected to show he was in a POW status as well as his unit of assignment, country and dates of capture and release.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  awarding the applicant the Purple Heart for wounds received in action on 6 September 1950 in Korea;

	b.  adding the Purple Heart, the POW Medal, the National Defense Service Medal, and the Republic of Korea War Service Medal to the awards that are currently shown on his DD Form 214, dated 17 December 1953; and

	c.  adding the entry "Prisoner of War, Company E, 8th Regiment, 1st Cavalry Division, Korea, 2 November 1950 - 7 August 1953" to item 38 of his DD Form 214, dated 17 December 1953.


2.  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 the applicant's award of the Purple Heart for his eye injury on 8 April 1952.




      _______ _   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)                                         AR20090004398



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ABCMR Record of Proceedings (cont)                                         AR20090004398



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