IN THE CASE OF:
BOARD DATE: 12 October 2010
DOCKET NUMBER: AR20100010412
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 as a prisoner of war in the Republic of Korea.
2. The applicant states he was beaten and ill while being held as a prisoner of war, but he did not receive the Purple Heart.
3. The applicant provides copies of his latest DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); FEC Form Number 303 (Report of Medical History in Captivity) with laboratory and x-ray reports; DA Form 5695 (Medical Survey - Master Form - Repatriated American Prisoners of War); Standard Form 88 (Report of Medical Examination); and a newspaper listing of Americans freed by North Korea, dated 28 August 1953.
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. He was a Regular Army retired sergeant first class/ pay grade E-7 at the time of this application.
3. The applicant's DD Form 13 (Statement of Service), dated 12 December 1973, shows he served in the Regular Army from 14 September 1950 to 25 October 1956 and from 12 December 1956 to 31 August 1972.
4. On 29 January 1951, the applicant was assigned as an infantryman in the Republic of Korea. He was captured and held as a prisoner of war from 24 July 1951 to 28 August 1953.
5. Item 26 (Cold Injuries) of FEC Form Number 303, dated 3 September 1953, states that the applicant suffered from frostbite while in captivity.
6. The applicant departed the Republic of Korea on or about 16 September 1953.
7. 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, and the medical treatment must have been made a matter of official record.
8. Army Regulation 600-45 (Decorations), which governed the award of Army decorations until 23 August 1951, stated that for the purpose of considering an award of the Purple Heart, a "wound" was defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy. An "element" pertained to weather and the award of this decoration to personnel who were severely frostbitten while actually engaged in combat was authorized.
9. Section 521a of the National Defense Authorization Act of 1996 authorized award of the Purple Heart to any former prisoner of war who was wounded before 25 April 1962 while held as a prisoner of war or while being taken captive in the same manner as a former prisoner of war who was wounded on or after that date. Section 521b specifically stated that award of the Purple Heart for prisoners of war under section 521a shall be made in accordance with the standards in effect on the date of the enactment of this Act to persons wounded on or after 25 April 1962.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he should be awarded the Purple Heart because he was beaten and ill while held as a prisoner of war during the Korean conflict.
2. The available evidence clearly shows the applicant was a prisoner of war in Korea and that he suffered frostbite during his captivity. However, there is no available evidence showing that he was beaten. Furthermore, there is no evidence showing he was wounded or suffered from frostbite while engaged in active combat with the enemy.
3. Regrettably, in view of the above the applicant's request for award of the Purple Heart should be denied.
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) AR20100010412
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ABCMR Record of Proceedings (cont) AR20100010412
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