BOARD DATE:	  27 May 2010

		DOCKET NUMBER:  AR20090020560 


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, through his Member of Congress, reconsideration of his earlier request for award of the Purple Heart (PH).

2.  The applicant did not make a statement; however, his Member of Congress states the applicant claims to have been injured while on patrol by a mortar shell that burst in an artillery barrage.  There is a news article in his Department of Veterans Affairs (VA) file that states the jeep "Shirley" absorbed most of the flying fragments and he should receive the Purple Heart.  He began passing blood in his urine and he was checked at a field hospital that sent him to a general hospital on Tokyo, Japan.  The hospital admission records from 20 December 1950, created by the Office of the Surgeon General (OTSG), show he was diagnosed with hematuria.  Additionally, the morning report listed him as hospitalized effective 20 December 1950, and both the commander's and medical officer's reports show a "yes" under the line-of-duty column.  Finally, the Textual Archives Services Division has supplied the deck log of the USS Constitution, a U.S. Naval hospital ship, which confirms he was being transported.

3.  The applicant provides a copy of a letter, dated 3 February 2003, from his spouse to his Member of Congress in support of his request.

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 AR20090011019 on 24 November 2009.

2.  The applicant submitted a new argument through his Member of Congress which was not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant's military record is not available to the Board 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.  This case is being considered using reconstructed records which primarily consist of his DD Form 214 (Report of Separation from the Armed Forces of the United States), OTSG hospital admission records, morning reports, sick reports, and various other documents remaining in the applicant's NPRC file.

4.  His DD Form 214 shows he enlisted in the Regular Army on 9 December 1948.  This form also shows at the time of his separation he held military occupational specialty 4667 (Clerk General) and his most significant assignment was with Headquarters Company, 2nd Battalion, 15th Infantry Regiment, 3rd Infantry Division.

5.  His DD Form 214 also shows he completed 3 years and 2 days of creditable active service of which 1 year, 3 months, and 27 days was foreign service.  He was honorably discharged on 10 December 1951.

6.  Item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the Korean Service Medal with three bronze service stars, two overseas service bars, Army of Occupation Medal with Japan Clasp, and Combat Infantryman Badge.

7.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) of his DD Form 214 contains the entry "None."

8.  His reconstructed records do not contain official orders awarding him the PH.

9.  His reconstructed records contain the following medical or personnel documents:

	a.  An OTSG hospital record that shows he was admitted to a military medical treatment facility in Korea on 20 December 1950 and he was treated for a non-battle related illness, "hematuria" (presence of red blood cells in the urine (erythrocytes)).

	b.  A WD AGO Form 8-24 (Hospital Admission Report) indicates he was admitted to a military medical facility at Fort Riley, KS, on 20 January 1949, treated for tonsillitis, and released on 21 January 1949.

	c.  A daily sick report for Headquarters and Headquarters Company, 2nd Battalion, 15th Infantry Regiment, his unit in Korea, shows he was reported sick on 17 September 1950, 1 October 1950, 23 October 1950, 17 December 1950, and 20 December 1950.  These sick reports do not list the specific medical condition.

	d.  A WD AGO Form 1 (Morning Report) shows his change in duty status from present for duty to sick-hospital on 20 December 1950 and that he was reported as having arrived from the replacement detachment on 1 March 1951.

10.  His request contains a copy of a letter from his spouse, dated 3 February 2003, to his Member of Congress wherein she states the applicant suffers from post-traumatic stress disorder and that he has had other illnesses over the years. 
She adds that he was injured during an artillery barrage while on a patrol in Korea.  This resulted in him passing blood in his urine and he was ultimately treated at a general hospital in Japan.  She also states she believes his kidney failure is related to this incident.  She further states he also froze his feet in Korea and he was treated at a field hospital.

11.  The PH was established by General George Washington on 7 August 1782 during the Revolutionary War.  It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action.

12.  Army Regulation 600-8-22 (Military Awards) states the PH 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, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the PH.

2.  The PH 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 OTSG admission report shows he was admitted to a military medical facility and treated for a non-battle related illness in December 1950 and the sick reports on file fail to show wounds received as a result of enemy action was ever the basis for his illnesses.  As a result, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.

4.  There is no evidence in his available service records which shows he suffered a wound/injury that resulted from hostile action or that he was treated for such wound/injury.  Regrettably, absent evidence which conclusively shows he sustained wounds/injuries as a result of hostile action, that he was treated by medical personnel for those wounds/injuries, and that this treatment was made a matter of official record, there is insufficient basis to award him the PH.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090011019, dated 24 November 2009.


2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant 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)                                         AR20090020560



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ABCMR Record of Proceedings (cont)                                         AR20090020560



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