BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090009932 


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 he was wounded by shrapnel from enemy fire in Korea on 29 May 1953 and that at the time of receiving the wound, he told the medic or doctor that he did not want the Purple Heart for fear of a telegram going home to his wife.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States), dated 22 December 1953; a self-authored statement, dated 28 June 2008; various photographs of bunkers, tanks, and maps; and pictures of the shrapnel that was removed from him.

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 was inducted into the Army of the United States and he entered active duty in Philadelphia, PA, on 16 January 1952.  This form further shows that at the time of his separation, the applicant appears to have held military occupational specialty (MOS) 3795 (Tank Crewman) and that his most significant duty assignment (i.e., his last duty assignment) was with Company C, 72nd Tank Battalion (Korea).

4.  The applicant’s DD Form 214 further shows that he completed 1 year, 11 months, and 7 days of creditable active military service during this period, of which 9 months and 20 days was foreign service.  He was honorably released from active duty on 22 December 1953 and he was transferred to the U.S. Army Reserve (USAR) to complete his remaining Reserve obligation.

5.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 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 "NA."

7.  The applicant’s reconstructed records do not contain orders awarding him the Purple Heart.

8.  The applicant's medical records are not available for review with this case.

9.  The applicant’s name is not shown on the Korean Casualty File.

10.  The applicant submitted photographs of the destroyed bunker, tank, maps, and pieces of shrapnel that he states was removed from him.  He also submitted a self-authored statement, dated 28 June 2008, in which he states that he was trained as a tank crewmember and he was assigned to teach advanced tank 
gunnery where he was exposed to loud and noisy conditions.  He adds that during his assignment to the 72nd Tank Battalion in Korea, he supported other forces on various hills during attacks by the enemy.  In March or April 1953, he was standing outside the turret of his tank in a dug-in position when an incoming round destroyed his bunker.  He was knocked down from the explosion and when he got up, his ears were ringing and he noticed a slight wound to his right leg.  He was subsequently taken to a field hospital where a doctor checked his ears and removed a small piece of shrapnel from his right shin area.  A medic wanted to recommend him for the Purple Heart; however, he did not want a telegram to go out to his wife and worry her, so he declined the recommendation. 

11.  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.  For the purpose of the Purple Heart, a wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of several conditions such as injury caused by enemy bullet, shrapnel, or other projectile created by enemy action, enemy placed mine or trap, enemy released chemical, biological, or nuclear agent, vehicle or aircraft accident resulting from enemy fire, and/or concussion injuries caused as a result of enemy generated explosions.  A physical lesion is not required; however, the wound for which the award is made must have required treatment by medical personnel and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be awarded the Purple Heart for a wound received in action in Korea and the evidence he submitted was carefully considered.  However, there is insufficient evidence to grant him the Purple Heart in this case.

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 sole justification for the award.

3.  For the purpose of the Purple Heart, a wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of several conditions to include concussion injuries caused as a result of enemy generate-explosions.  A physical lesion is not required; however, the wound for which the award is made must have required treatment by medical personnel and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.

4.  There is no evidence in his reconstructed records that shows the applicant was wounded or injured as a result of hostile action or treated for such wounds or that his treatment was made a matter of official record.  In the absence of orders or documentation that show he was wounded or injured as a result of hostile action and treated for those wounds; regrettably, there is insufficient evidence upon which to base award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x_____  ____x__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by him in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      ___________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)                                         AR20090009932



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ABCMR Record of Proceedings (cont)                                         AR20090009932



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