IN THE CASE OF:	 

		BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090013486 


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 and the Good Conduct Medal.

2.  The applicant states that he never received medical treatment from his company medic or doctor because he was with his buddy, T-- O----- when he was wounded in Korea on 8 or 9 February 1953 and was rotated home 2 or 3 days later.  

3.  The applicant provides a self-authored statement, dated 29 May 2009, and an undated statement from his buddy, T-- O-----, in support of his request.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests the applicant be awarded the Purple Heart.

2.  Counsel states that the applicant served on active duty from 11 October 1951 to 11 July 1953.  He was assigned to D Company, 279th Infantry Battalion, 45th Infantry Division, heavy weapons duty as part of an active Army National Guard unit stationed out of Oklahoma.  He participated in two large operations, the assault of T-Bone Hill in the summer of 1952 and Heartbreak Ridge in February 1953, during his service in Korea.  He was wounded during the second large operation.


3.  Counsel also states that on 8 or 9 February 1953, the applicant and his buddy were ordered to return to a hill site at Heartbreak Ridge to retrieve a jeep that was abandoned during an assault the previous day.  The two individuals remember that while returning the jeep that night, the enemy launched a mortar round directed at them.  The round exploded near them, damaging the applicant's M-1 Carbine and wounding him.  He received a 1.5 inch laceration to his left calf area and a 1-inch cut to his head, just above the left eye.  The applicant's buddy helped treat him and stop the bleeding.  He never received formal medical assistance at his base camp because his unit rotated out of the area two days later.  

4.  Counsel provides a copy of the undated statement from the applicant's buddy, T-- O-----, and a copy of the applicant's DD Form 214 (Report of Separation from the Armed Forces of the United States) in support of this 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 was called to active duty in Indianapolis, IN, on 11 October 1951.  This form further shows that at the time of his separation, the applicant held military occupational specialty 1014 (Mechanic) and that his most significant duty assignment (i.e., his last duty assignment) was with Headquarters Company, 9404th Signal Corps Center Troop Command, Fort Monmouth, NJ.

4.  The applicant’s DD Form 214 further shows that he completed 1 year and 9 months of creditable active military service, of which 1 year and 1 day was foreign service.  He was honorably released from active duty on 10 July 1953 and he was transferred to the Enlisted Reserve Corps 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 shows he was awarded the Korean Service Medal with two bronze service stars, the Combat Infantryman Badge, and the United Nations Service Medal.  Item 27 does not show award of the Purple Heart or the Good Conduct Medal.

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.  The applicant’s reconstructed records do not contain orders awarding him the Purple Heart or the Good Conduct Medal.

8.  The applicant's medical records are not available for review with this case. Additionally, his name is not shown on the Korean Casualty File.

9.  The applicant's DA Form 24 (Service Record), which would have shown his conduct and efficiency ratings throughout his military service, is not available for review.

10.  Item 38 (Remarks) of the applicant’s DD Form 214 shows he had no lost time under Section 6(a), Appendix 2b, Manual of Court-Martial, 1951.

11.  In an undated statement, the applicant's buddy, T-- O-----, states that he witnessed the events mentioned in the applicant's statement.  The applicant states that he served with Company D, 279th Battalion, 45th Infantry Division and that he was on Heartbreak Ridge in Korea in February 1953 when a jeep that was bringing supplies to front line troops was stuck in the mud and received enemy mortar fire forcing its occupants to abandon it.  That night, he and two other men tried to retrieve the jeep and were able to free it and even drive it a couple of hundred yards before they stopped when a mortar round exploded nearby and knocked them out.  His carbine gun was torn up and he was bleeding from his leg and left eyebrow.  He did not go to the medics because this would have separated him from his unit which was rotating back home within a week.  



12.  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.  

13.  Army Regulation 600-65 (Service Medals), in effect at the time, provided in pertinent part policy and criteria concerning the Army Good Conduct Medal.  It stated that the Army Good Conduct Medal was awarded for a period of 3 continuous years completed subsequent to 26 August 1940, except that an award may be made for the completion of a period of one continuous year between 7 December 1941 and 2 March 1946, both dates inclusive.  At the time, a Soldier's conduct and efficiency ratings must have been rated as "excellent" for the entire period of qualifying service except that a service school efficiency rating based upon academic proficiency of at least "good" rendered subsequent to 11 November 1956 was not disqualifying.  However, there was no right or entitlement to the medal until the immediate commander made a positive recommendation for its award and until the awarding authority announced the award in General Orders.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show award of the Purple Heat and the Good Conduct Medal.  

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.  The applicant and his buddy's memoirs are noted.  Additionally, their sincerity with respect to the incident that occurred on 8 or 9 February 1953 is not in question.  However, there is no documentary 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 shows 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.
4.  With respect to the Good Conduct Medal, the applicant's honorable service to our Nation is not in question.  However, his reconstructed record is void of any recommendation for and/or order that shows the applicant was recommended for or awarded the Good Conduct Medal.  Additionally, the applicant's DA Form 24 is not available for review with this case, which makes it impossible to determine the applicant's conduct and efficiency ratings for the entire period of qualifying service.  

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.  



      _______ _   _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)                                         AR20090013486



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ABCMR Record of Proceedings (cont)                                         AR20090013486



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