BOARD DATE:	  16 July 2009

		DOCKET NUMBER:  AR20090004469 


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, award of the Purple Heart (PH).  

2.  The applicant states, in effect, he needs help in getting what he deserves.

3.  The applicant provides his DD Form 214 (Report of Separation from the Armed Forces of the United States) and a third party statement in support of his application.

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 (NPRC) in 1973.  It is believed his records were lost or destroyed in that fire.  However, there were sufficient documents available for the Board to conduct a fair and impartial review of this case.  This case is being considered using primarily the applicant's DD Form 214 and an Office of the Surgeon General (OTSG) Hospital Admission Record contained in the NPRC file. 

3.  The available OTSG Hospital Admission Record for 1950 confirms the applicant was admitted to a medical treatment facility in Korea on 8 and 
16 November 1950, and that he was treated for Dengue Fever and Gastroenteritis, which were coded as non-battle related illnesses.

4.  The applicant’s DD Form 214 shows he enlisted in the Regular Army and entered active duty on 24 August 1949.  Item 5 (Specialty Number or Symbol) contains the entry 71745 (Infantryman). 

5.  On 23 January 1953, the applicant was honorably discharged in the rank of private (PV2)/E-2 after completing 3 years, 1 month, and 14 days of active military service.  

6.  Item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows that during his active duty tenure he earned the Combat Infantryman Badge, Parachutist Badge, Korean Service Medal with 8 bronze service stars, United Nations Service Medal, Distinguished Unit Citation, and Korean Presidential Unit Citation. The PH is not included in the list of awards contained in item 27 and item 29 (Wounds Received as a Result of Action with Enemy Forces) contains the entry "None."

7.  The applicant provides a third party statement from a retired major who indicates he was assigned to the same unit (Company C, 38th Infantry Regiment) as the applicant during their tour in Korea.  This individual indicates that while fighting in North Korea their unit was ambushed during the battle of Hoengsong, on 11 February 1951, and the applicant had a near miss from a mortar shell which blew him down.  He states the applicant was sent to the rear for treatment and returned to active duty in a few days. 

8.  During the review of this case, a member of the Board staff reviewed the Korean War Casualty Roster.  This search failed to reveal an entry pertaining to the applicant.  


9.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that the PH is awarded to any member who has been wounded or killed in action. The awards regulation defines a wound as an injury to any part of the body from an outside force or agent sustained under conditions defined by this regulation.  In order to support awarding a member the PH, it is necessary to establish that the wound for which the award is being made was received as a direct result of, or was caused by enemy action, and the wound required treatment by medical personnel.  The treatment must have been made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the PH was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, in order to award the PH it is necessary to establish that the wound for which the award is being made was received as a result of enemy action, that it required treatment by military medical personnel, and a record of this medical treatment must have been made a matter of official record.  

3.  The applicant's DD Form 214, item 29, indicates the applicant was never wounded as a result of enemy action.  Further, the available OTSG hospital record confirms only that the applicant was treated for non-battle related illnesses while serving in Korea.  Finally, his name is not included on the Korean Casualty Roster, the official DA list of Korean battle casualties.  

4.  The third-party statement provided by the applicant indicates the applicant was thrown to the ground as a result of a near miss from a mortar round and the applicant was moved to the rear.  The statement does not confirm the applicant was wounded during this incident.  Further, there is no medical treatment record available for a combat related wound involving this incident.  As a result, this statement is not sufficient to support award of the PH.  Absent documentary evidence confirming the applicant was wounded in action and medically treated.  The regulatory burden of proof necessary to support award of the PH has not been satisfied 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.   

6.  The applicant and all others concerned should know that this action related to award of the PH 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.




      _______ _   _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)                                         AR20090004469



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ABCMR Record of Proceedings (cont)                                         AR20090004469



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