BOARD DATE:	  29 July 2010

		DOCKET NUMBER:  AR20100001213 


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 for injuries he sustained in combat during the Korean War.

2.  The applicant states:

	a.  Until recently he was under the impression a Soldier had to be shot to get the Purple Heart, but after reading an article in the November 2009 issue of the Elks Magazine he now knows his thoughts were incorrect.  The article indicated that a Soldier received a belated Purple Heart for a broken pelvis caused by his parachute not opening correctly after bailing out of a disabled aircraft.

	b.  On 21 July 1950, he injured his right kidney when he jumped off his M-5 tractor while under heavy enemy fire.  Because he was still able to move, he loaded the wounded back onto the M-5 tractor and kept driving down the road until he encountered an enemy tank.  The only defense he had was to try to hit the tank before it could get a shot off.  As he hit the tank he had to dodge the main gun of the tank as he was driving his M-5 right under it.  As he tried to avoid getting hit by the main gun of the tank, he reinjured his kidney.  He was not able to get medical attention until 5 August 1950.  

	c.  between the date of his injury and the date he received medical attention, he was passing blood in his urine.  When the doctor saw the blood in his urine, he was sent back to the United States for treatment at the Great Lakes Naval Hospital and he remained there until 7 October 1950 until he was flown back to Korea.
3.  The applicant provides copies of his DD Form 214 (Report of Separation from the Armed Forces of the United States) and a newspaper article reporting award of the Silver Star for his actions on 20 July 1950.

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 for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed 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 enlisted in the Regular Army on 9 March 1949 and was separated on 12 June 1952 after completing 3 years, 3 months, and 4 days of active service.  

4.  A WD AGO Form 20 (Soldier's Qualification Card) shows that after completing initial entry training the applicant was assigned as a cannoneer with A Battery, 11th Field Artillery Battalion, then stationed in Japan.  A WD AGO Form 24A (Service Record) shows that on or about 6 July 1950, he arrived in Korea with this unit.

5.  General Orders Number 153, Headquarters, 24th Infantry Division, awarded the applicant the Silver Star for gallantry in action on 20 July 1950, near Taejon, Korea.  The citation confirms the events described by the applicant; however, it does not show he was injured in action.  

6.  The applicant's WD AGO Form 24A shows in Section 6 (Original Assignment and Organizations to Which Subsequently Assigned During this Period of Service) the applicant was assigned to the Medical Holding Detachment (MHD), Osaka Army Hospital, from 5 to 25 August 1950.  The form shows he was subsequently assigned to an unnamed hospital in the United States from 
26 August 1950 to an illegible date in November 1950 then he returned to Korea and to A Battery, 11th Field Artillery Battalion.  

7.  The applicant's WD AGO Form 24A, section 8 (Wounds Received through Enemy Action) contains no entry, and section 21 (Medals, Decorations, and Citations) does not show award of the Purple Heart.  

8.  The applicant's DD Form 214, Item 29 (Wounds Received as a Result of Action with Enemy Forces), contains the entry "NA."

9.  A Report of Medical History completed prior to the applicant's release from active duty shows he reported a back injury incurred during a fall from a tractor in July 1950 in Korea.

10.  The applicant's name is not listed on the Korean Casualty File as having been wounded during the Korean War.

11.  The applicant's complete service medical records are not available for review.

12.  The newspaper article provided by the applicant reported he injured his back in action for which he was awarded the Silver Star.  

13.  Army Regulation 600-8-22 (Military Awards) provides 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 the result of hostile action, the wound must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for award of the Purple Heart was carefully considered.  Regrettably, the evidence of record is insufficient to establish his entitlement to the Purple Heart.  

2.  The evidence of record shows the applicant was hospitalized on 5 August 1950, approximately 2 weeks after the action in which he states he was injured.  Unfortunately, the available records do not include sufficient evidence and the applicant has not provided official documentation showing he was injured as a result of hostile action or the reason he was hospitalized.  In the absence of such evidence, there is an insufficient basis to award 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.  Although his entitlement to the Purple Heart cannot be established based on the available evidence, 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)                                         AR20100001213



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)