IN THE CASE OF:	  

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090017474 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's earlier request for correction of his military records by awarding him the Purple Heart.

2.  Counsel notes the Board's initial decision to deny the applicant award of the Purple Heart due to an absence of documentation showing that he was wounded as a result of hostile action and received medical treatment for those wounds.  Counsel also states that the letter from the Chief, U.S. Army Center of Military History, demonstrates the material error and injustice of that decision.

3.  Counsel provided a rewrite of the applicant's sworn statement that the Board had previously considered.  Counsel also states that the applicant's Department of Veterans Affairs (VA) medical records show that he received medical treatment in June and July 1951 for a "metallic foreign body (a fragment of shrapnel)" that was "lodged subcutaneously in the posterior cervical region.  It was removed.

4.  Counsel concludes that the evidence simply speaks for itself.  No reasonable explanation would explain how shrapnel became imbedded in the applicant other than through combat with North Korean forces in 1950.  Counsel contends that the applicant's sworn statement is strongly corroborated by the VA medical record and the letter from the Chief, U.S. Army Center of Military History.

5.  In support of this request for reconsideration, Counsel provides a letter from the Assistant Chief, U.S. Army Center of Military History, dated 24 June 2009.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080012419 on 16 October 2008.

2.  The letter from the Assistant Chief, U.S. Army Center of Military History, is new evidence requiring consideration by the Board.

3.  In the original case, the Board considered the applicant's sworn statement of events and the VA clinical record of the applicant's operation to remove shrapnel from his scalp.  However, the Board determined that the available evidence was insufficient to warrant relief because there was no evidence showing that the applicant had actually been wounded as a result of enemy action or that he had received any medical treatment at the time.  The VA medical record of treatment was found to be insufficient because it did not establish that his condition was sustained while in action against the enemy or was the result of a hostile action in the Republic of Korea.

4.  The letter from the Assistant Chief, U.S. Army Center of Military History, provides the following:

	a.  The applicant was assigned to Company B, 21st [Infantry] Regiment as of 8 July 1950.

	b.  The applicant was promoted to corporal on 15 September 1950.

	c.  The applicant's unit was in contact with North Korean forces from 5 July through his remaining time in Korea.

	d.  The applicant's unit performed significant combat during July and the first half of August 1950.

5.  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 sustained while in action against the enemy or was the result of a hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, through his counsel, contends that he was wounded in action in the Republic of Korea and should be awarded the Purple Heart.

2.  The new evidence clearly shows that the applicant was assigned to a unit in Korea at the time it performed significant combat against a hostile enemy force.  Unfortunately, this additional documentation does not provide the definitive evidence necessary for award of the Purple Heart.

3.  Counsel's conclusion that the evidence simply speaks for itself and that no reasonable explanation would explain how shrapnel became imbedded in the applicant other than through combat with North Korean forces in 1950 is not sufficiently convincing.  The applicant was discharged from the Army in November 1950 and underwent an operation about 8 months later to remove metal fragments from his scalp.  Considering that people sustain imbedded metallic fragments from industrial, vehicular, and sporting accidents, a reasonable person could easily conclude otherwise.

4.  In view of the above, the applicant's request should be denied.

BOARD VOTE:

____X___  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board found the evidence of significant combat during the time the applicant was assigned to his unit, obtained from the Center for Military History, plus the record of shrapnel in VA records shortly thereafter, provided sufficient evidence to infer that the applicant's wound was combat related and was not recorded only because of oversight or the exigencies of the situation.  



2.  Therefore, the Board determined that the overall merits of this case are sufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20080012419 on 16 October 2008 by awarding the applicant the Purple Heart for wounds received in September 1950.




      _____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)                                         AR20090015804



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ABCMR Record of Proceedings (cont)                                         AR20090017474



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