IN THE CASE OF:	

		BOARD DATE:	15 September 2009  

		DOCKET NUMBER:  AR20090008311 


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.

2.  The applicant states, in effect, that he was stationed in Korea as a member of 3rd Platoon, Company C of the 64th Tank Battalion (Mechanized).  He further states that his unit was attacked early one morning and as a result, he sustained shrapnel wounds to the right small finger of his right hand.  The applicant continues that his commander (Lieutenant C____n) said he would recommend the applicant for award of the Purple Heart in recognition of his wounds.  The applicant states that he was a proud Soldier and told his commander that it was not necessary.  The applicant reflects that looking back on that decision, he should have allowed his commander to recommend him for award of the Purple Heart because he desires to have the award now.  The applicant states that he underwent surgery to remove a portion of his finger in which one of the pieces of shrapnel had become rusted.  The applicant concludes that another piece of shrapnel remains in his finger as evidenced by the X-ray he provided.

3.  The applicant provides a self-authored statement, an X-ray, and a Radiology Report as documentary evidence in support of this 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 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 members’ records at the National Personnel Records Center (NPRC) 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 to conduct a fair and impartial review of this case.

3.  The applicant's DD Form 214 shows he was inducted into the Army of the United States on 11 April 1951.  The applicant possessed military occupational specialty (MOS) 1795 (Tanker).  He held the rank/grade of corporal (CPL)/E-4 on the date of his separation.  His most significant duty assignment during this period of active duty was to Company C of the 64th Tank Battalion (Mechanized). The applicant was credited with 8 months and 24 days of foreign and/or sea service.  The applicant was honorably released from active duty on 25 March 1953, after completing a total of 1 year, 11 months, and 15 days of active military service.  He was transferred to the Enlisted Reserve Corps (ERC) to complete his remaining Reserve obligation.

4.  A Standard Form (SF) 88 (Report of Medical Examination), dated 23 March 1953, shows the applicant underwent a medical examination two days prior to his separation.  Item 39 in the Clinical Evaluation portion of this form (Identifying 
body marks, scars, tattoos) shows the applicant had a birthmark on his lower left quadriceps and a tattoo on his right upper arm.  Item 74 (Summary of Defects and Diagnoses) of this form is blank.

5.  Item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows that he received the Korean Service Medal with one bronze service star and the United Nations Service Medal.  There is no indication of receipt of the Purple Heart.

6.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) of the applicant's DD Form 214 is blank.

7.  There is no evidence in the available records or the documents provided by the applicant which shows that he was either recommended for or awarded the Purple Heart.

8.  There is no evidence in the available records or the documents provided by the applicant which shows that he sustained any injuries as a result of hostile action or that he was treated for wounds sustained as a result of hostile action.

9.  The applicant's name does not appear on the Korean Casualty Roster.

10.  The applicant provides an undated self-authored statement in which he recounts the events which occurred on the date that he was wounded.  The applicant states, in effect, that he was attached to 3rd Platoon, Company C of the 64th Tank Battalion.  Lieutenant C____n was the platoon commander.  They were located on the 38th parallel sometime toward the end of 1952 or beginning of 1953.  The applicant states that he was hanging his sleeping bag over a communications wire strung between two trees when an incoming shell burst in the treetop and blew up the lieutenant's sleeping bag.  He continues that the blast also knocked him down and cut his side, arm, and little finger.  The applicant states that the rest of the platoon and Lieutenant C____n were downhill warming C-Rations.  The applicant continues that when he went down to report the incident, the lieutenant taped up his side and hand.  The lieutenant investigated the area and picked up shrapnel and the nose cone fuse from the artillery shell for evidence.  The applicant states that the lieutenant later gave him the fuse off the shell to keep as a souvenir.  The applicant concludes that he has attempted to contact the lieutenant and other Soldiers in the platoon over the years, but was been unable to reach them.

11.  The applicant provides a photo of an object he states is a portion of the shell casing which was recovered at the platoon's campsite and given to him by his lieutenant.

12.  The applicant provides an X-ray and a Radiology Report rendered by a medical doctor at the Hot Springs County Memorial Hospital located in Thermopolis, WY on 17 September 2008.  The report shows that on the day of the examination, the applicant had a 3 millimeter metallic foreign body in his finger.  No fracture or dislocation was identified and there was no significant soft tissue swelling associated.  This report does not mention any facts or circumstances regarding how the foreign body entered the applicant's finger.

13.  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's contention that he is entitled to the award of the Purple Heart due to injuries he received during hostile actions was carefully considered.

2.  There is no evidence in the available records and the applicant has not provided sufficient evidence which shows that he sustained injuries as a result of hostile action or that he received treatment for injuries that were sustained as a result of hostile action.  Regrettably, based on the foregoing there is insufficient evidence to grant the applicant's request for award of the Purple Heart.

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)                                         AR20090008311



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ABCMR Record of Proceedings (cont)                                         AR20090008311



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