IN THE CASE OF:
BOARD DATE: 8 September 2010
DOCKET NUMBER: AR20100007375
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, the brother of a deceased former service member (FSM), requests his late brother be awarded the Purple Heart.
2. The applicant states:
* the FSM died in Korea
* he was in combat at the time of his death
* he was accidentally shot by another Soldier who was cleaning his weapon
3. The applicant provides:
* Western Union telegram
* letter, dated 15 November 1950, from the 8055th Mobil Army Surgical Hospital
* letter, dated 7 May 1951, from the Department of the Army Office of the Quartermaster General
* Notice of Settlement of Claim
* his birth certificate
* letter, dated 5 April 2010, from the applicant's daughter
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 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 FSM'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. Records show the FSM served with the 71st Tank Battalion in Korea.
4. The applicant provided a Western Union telegram which states the FSM died in Korea as a result of a gunshot wound to his chest on 5 August 1950. He was accidentally shot by another Soldier who was cleaning his weapon.
5. The Office of the Surgeon General Hospital Admission Cards Data File shows the FSM was hospitalized on 5 August 1950 in Korea with a non-battle injury. The causative agent is listed as "Accidents in connection with use of own instrumentalities of war: Explosion of small arms ammunition." The disposition type is listed as "Separation from service: Death."
6. The applicant provided a letter, dated 15 November 1950, from the 8055th Mobile Army Surgical Hospital which states the FSM died on 6 August 1950 at that hospital as a result of wounds he received on 5 August 1950.
7. There are no orders for the Purple Heart in the available records.
8. 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 medical personnel, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
The evidence of record shows the FSM died on 6 August 1950 as a result of wounds received on 5 August 1950 in Korea. The Western Union telegram states he was accidentally shot by another Soldier who was cleaning his weapon on 5 August 1950 in Korea, not as a result of hostile action. The Office of the Surgeon General Hospital Admission Cards Data File shows the FSM was hospitalized on 5 August 1950 in Korea with a non-battle injury caused by an accident. There is no evidence in the available records which shows the FSM died as a result of hostile action in Korea. Regrettably, there is insufficient evidence on which to award the Purple Heart.
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) AR20100007375
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100007375
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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