IN THE CASE OF:	  

		BOARD DATE:	  15 June 2010

		DOCKET NUMBER:  AR20090020468 


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 that his deceased father, a former service member (FSM), be awarded the Purple Heart (PH).

2.  The applicant states his father was wounded in his left leg by a missile in Korea in 1950 and never received the PH.

3.  The applicant provides the following in support of his application:

* WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge), effective 20 March 1947
* DD Form 214 (Report of Separation from the Armed Forces of the United States), effective 25 May 1951
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), effective 24 May 1957
* DD Form 214, effective 2 June 1963
* DD Form 214, effective 2 May 1957
* DD Form 214, effective 31 October 1969
* FSM's death certificate, date of death 19 December 1994
* WD MD Form 55A (Clinical Brief), date of admission 30 September 1950
* Standard Form 507 (Clinical Record), dated 26 April 1954

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 FSM's record shows he reenlisted in the Regular Army on 17 September 1947 and served in military occupational specialty 511 (Armorer).

3.  The FSM's DA Form 24A-2 (Insert to WD AGO Form 2A), section 8 (Combat Record), shows he was assigned to Company B, 72d Tank Battalion, in Korea from 17 August 1950 through 22 September 1950.  Section 8 (Wounds Received through Enemy Action) shows "wound, left thigh, 21 September 1950."

4.  On 25 September 1950, the Executive Officer, Company B, 72d Tank Battalion, 2d Infantry Division, completed a preliminary investigation on an incident involving the applicant.  The memorandum states that at the time of the incident the FSM was on guard duty on a tank, sitting on the tank commander's seat with his feet resting on the breach end of the 76 millimeter gun.  He had his .45 caliber pistol in his right hand, fully loaded with the hammer back and safety off, and his hand and gun resting in his lap.  In this position it would be very easy for the FSM to accidently discharge his weapon.  The other members of the crew did not believe he shot himself on purpose.

5.  The record shows the FSM was transferred to a Medical Holding Detachment in Tokyo on 27 September 1950.

6.  The FSM underwent a medical examination on 22 May 1951 and item 39 (Identifying Body Marks, Scars, Tattoos) of his Standard Form 88 (Report of Medical Examination) shows "bullet wound left thigh with exit scar on post-surface of thigh."

7.  On 25 May 1951, the FSM was discharged for the purpose of reenlistment after completing 3 years, 8 months, and 8 days of creditable active military service.  The DD Form 214 issued at the time shows he earned the Korean Campaign Medal during his active duty tenure.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) shows "none."

8.  The clinical records provided by the applicant show the FSM:

	a.  was admitted to Tripler Army Hospital on 30 September 1950 for a "wound, missile, penetrating, left thigh" and

	b.  sustained a "compound fracture of the left femur in September 1950, result of a gunshot wound."

9.  The applicant further provides separation documents covering the FSM's entire Army career from 29 October 1945 to 31 October 1969.  These documents are void of any documentation for award of the PH.

10.  A review of the Korean casualty roster, a by-name report of individuals wounded and killed during the Korean War, does not list the FSM's name.

11.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards policy.  Paragraph 2-8 contains guidance on award of the PH.  It states, in pertinent part, that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that it required treatment by medical personnel, and a record of the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the FSM was wounded in action in Korea and should have been awarded the PH was carefully considered.  However, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that it required treatment by medical personnel, and a record of the medical treatment must have been made a matter of official record.

2.  The record contains both conflicting and incomplete information concerning the facts and circumstances of the FSM's injury while serving in Korea.  Although the FSM's DA Form 24A-2 shows the wound was sustained in combat, the memorandum from the executive officer of the FSM's unit, dated 25 September 1950, provides in great detail how the injury occurred and concludes that the FSM accidentally shot himself in the leg.  Further, the preliminary investigation occurred immediately after the incident and is presumed to be the most accurate account of the circumstances.

3.  The evidence of record is void of any documentation showing the FSM was ever awarded the PH by proper authority while serving in Korea.

4.  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 regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Therefore, it would not be appropriate to award the FSM the PH at this time.

5.  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 FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of the FSM's 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)                                         AR20090020468



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ABCMR Record of Proceedings (cont)                                         AR20090020468



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