IN THE CASE OF:	  

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100008726 


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 and correction of his DD Form 214 (Report of Separation from the Armed Forces of the United States) to show it. 

2.  The applicant states he was wounded in Kumwha Valley, Korea, while serving with 9th Corps, 8th Division in 1953.  He suffered shrapnel injury to both legs. 

3.  The applicant provides the following documents:

* VA Form 21-0781 (Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder)
* DD Form 214 
* VA Progress Notes
* A copy of a letter

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 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 his 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's DD Form 214 shows he enlisted in the Regular Army and entered active duty on 21 March 1952.  This form also shows at the time of his separation, he held military occupational specialty (MOS) 1795 (Tank Ammunition Specialist/Tank Crewmember) and his most significant duty assignment (i.e., his last duty assignment) was with Company B, 6th Tank Battalion, Korea.

4.  His DD Form 214 further shows he completed 2 years and 24 days of creditable active military service, of which 1 year, 6 months, and 26 days was foreign service.  He was discharged on 14 April 1954.

5.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the Korean Service Medal, United Nations Service Medal, and National Defense Service Medal.  

6.  Item 29 (Wounds Received As a Result of Action with Enemy Forces) of his DD Form 214 shows the entry "None."

7.  His reconstructed records do not contain orders awarding him the Purple Heart.  Additionally, his medical records are not available for review with this case and his name is not shown on the Korean Casualty File.

8.  He submitted the following documents:

	a.  A copy of VA Form 21-0781, dated 23 September 2008, wherein he states that he was in a bunker working on his switchboard when several explosions occurred and he was thrown underneath his switchboard.  He felt shrapnel or pieces of wood in his legs.

	b.  A VA progress note, dated 7 June 2006, wherein he describes having had shrapnel injury to both legs in combat.
	c.  A letter, dated 6 March 1954, from a U.S. Air Force General Officer (GO) to the Commanding Officer of IX Army Corps, also a GO, wherein the author  describes the applicant's narrow escape from death in Korea that involved entrapment in a bunker and being pinned down.  The author requests the applicant's immediate discharge and return to his family.  

9.  The Purple Heart was established by General George Washington at Newburgh, New York, 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.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart 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 by medical personnel, 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 Purple Heart.

2.  The Purple Heart 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.  Award of the Purple Heart requires a Soldier to having been injured or wounded by hostile action, the wound must have required treatment by medical personnel, and the medical treatment for wounds or injuries received in action must have been made a matter of official record.

3.  The applicant's service in Korea and his encounter at the bunker are noted; however, there is insufficient evidence that shows he was wounded or injured as a result of hostile action or treated for such wounds or that his treatment was made a matter of official record.  

4.  In the absence of documentary evidence that shows he was wounded or injured as a result of hostile action and treated for those wounds, regrettably, there is insufficient evidence upon which to base award of 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.  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)                                         AR20100008726





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ABCMR Record of Proceedings (cont)                                         AR20100008726



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