IN THE CASE OF:	  

		BOARD DATE:	  24 August 2010

		DOCKET NUMBER:  AR20100009856 


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 correction of his records to show award of the Purple Heart.

2.  The applicant states that in 1950 he was assigned to the 2nd Battalion, 7th  Cavalry (Infantry), Korea.  At the time of his injury his unit was positioned around a small village when enemy mortars, artillery, and small arms fire began to target their position at night.  The applicant states that he heard a tank coming down the road towards the village.  The tank opened up with machine gun fire and, without hesitation, he turned and headed back to the village with the tank in pursuit. 

3.  The applicant continues that he found an opening between two buildings.  He could see that the barbed wire was nailed between the two buildings.  He hit the barbed wire between his jaw and his lower lip.  The barbed wire lacerated his face, his jaw, and lower lip and took out four of his front top teeth.  The applicant states that he went to the battalion aide station were a doctor treated him for his injuries.  At that time, the doctor said to him "you'll get the Purple Heart for that."
 
4.  The applicant provides:

* DD Form 214 (Report of Separation from the Armed Forces of the United States) for the period ending 29 May 1952
* a photograph of the applicant in the Los Angeles Examiner titled "Taken From Foe," dated 22 August 1950 
* Morning Report from Headquarters and Headquarters Company, 2nd Battalion, 7th Cavalry (Infantry), dated 23 June 1951
* Office of The Surgeon General of the Army Admission Cards 
* National Personnel Records Center memorandum, dated 16 December 2003

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 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.  In addition, the applicant's DD Form 214 and Hospital Admission Cards from the Office of The Surgeon General of the Army were available.

3.  The applicant's DD Form 214 covers his service in Korea.  Item 
27 (Decorations, Medals, Badges, Commendations, Citations and Campaigns Ribbons or Authorized) does not show award of the Purple Heart.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) contains the entry "NONE."

4.  The applicant provided a Hospital Admission Cards created by the Office of The Surgeon General of the Army.  The record contains information that shows 
the applicant was hospitalized for a non-combat fitting of a dental prosthetic device on 2 December 1950.  The admission card further shows that there was no causative agent for his hospitalization.

5.  There is no evidence in the applicant's service records that shows he was wounded or treated for wounds as a result of hostile action in Korea.  His name is not listed on the Korean War Casualty File.

6.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, 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, and the medical treatment must have been made a matter of official record.  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.  

DISCUSSION AND CONCLUSIONS:

1.  There are no orders in the applicant's service personnel records that show he was awarded the Purple Heart.  There is no evidence in the available records and the applicant has not provided evidence that shows his injury was a result of hostile action.  In addition, the applicant's Hospital Admission Card clearly shows his hand injury was not a result of hostile action. 

2.  In addition, from the description the applicant gave concerning how he incurred those injuries, it does not appear that they were cause by the enemy to a sufficient degree to warrant award of the Purple Heart.

3.  Regrettably, in the absence of military records which show the applicant was injured as a result of hostile action, there is an insufficient basis for award of the Purple Heart in this case.

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)                                         AR20100009856





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         A