IN THE CASE OF:	

		BOARD DATE:	  27 April 2010

		DOCKET NUMBER:  AR20100013322 


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.  This is a reconsideration of that portion of the applicant's earlier request for correction of his DD Form 214 (Report of Separation from the Armed Forces of the United States) to show three awards of the Purple Heart.

2.  The applicant previously stated that he was wounded three times.  He was shot in the right knee and right shoulder before he was captured; he was wounded in the left leg when he was strafed by an American plane; and he was in a prisoner of war (POW) status.

3.  Prior to finalizing the applicant's original case, additional records were discovered:  an AGO Form 0709 (Record of Posthumous Award of Purple Heart), dated 3 December 1950; a copy of an AGO Form 0286 (Extract Sheet), dated  26 July 1951; and a copy of a sworn affidavit, dated 26 December 1950.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090015790, on 25 February 2010.

2.  The applicant's reconstructed records contain a copy of an AGO Form 0709, dated 3 December 1950; a copy of an AGO Form 0286, dated 26 July 1951; and a copy of a sworn affidavit, dated 26 December 1950, that were not previously available to the ABCMR.  Therefore, they are considered new evidence and, as an exception to policy, warrant reconsideration by the Board.

3.  His records show he enlisted in the Regular Army for a period of 3 years on    1 February 1950.  He was trained at Fort Benning, GA, and held military occupational specialty 4844 (Field Artillery).

4.  His records also show he arrived in Yokohama, Japan, on 27 July 1950 and he was subsequently reassigned to Korea on 5 August 1950 where he was assigned to B Battery, 57th Field Artillery Battalion.

5.  His records contain several battle casualty reports that show he was initially reported missing in action (MIA) on or around 6 December 1950.  His status was then changed and he was reported as killed in action (KIA) as of 3 December 1950.  However, a subsequent investigation coupled with other evidence received by the Department of the Army (DA) in the form of unofficial propaganda broadcasts and a letter from the applicant to his mother indicated he was captured and was being held as a POW in the hands of opposing forces.  He returned to military control on 14 August 1953.

6.  The initial determination of KIA was largely based on a witness statement, dated 26 December 1950, wherein the witness stated in a certified affidavit the applicant had died.  He stated he was a friend of the applicant's brother, he had known the applicant's brother for 2 years, and they were both assigned to the same platoon in C Company, 32nd Infantry Regiment.  When he shipped to Korea, he met the applicant, who was assigned to B Battery, 57th Field Artillery Battalion.  During an operation near the Chosin reservoir, the 57th Field Artillery was attached to the 32nd Infantry.  He saw the applicant was wounded and then later, as the fighting continued, he saw him sitting on a truck heading out toward a Marine unit.  Two minutes later, as he (the witness) was helping another wounded man on the same truck, automatic gun fire hit him in the chest.  The burst tore up his carbine and knocked him over on his side.  There were so many injured and dead Soldiers, they had to take the dead Soldiers off the truck to make room for the wounded.  The applicant was one of the men unloaded as dead.  The last time he saw the applicant, he was lying in the ditch beside the road.  He was dead.

7.  In connection with his initial report of being KIA, DA published an AGO Form 0709 on 17 May 1951 awarding the applicant a posthumous Purple Heart.


8.  Subsequent to this affidavit, several battle casualty reports were issued as follows:

	a.  Casualty Report, dated 26 March 1951, indicated that he was MIA in Korea on 6 December 1950.

	b.  Casualty Report, dated 6 April 1951, indicates that he was initially reported in an MIA status on 6 December 1950 in the vicinity of Hagaru-ri, North Korea.  He was present with his battery when initially engaged with the enemy on 26 November 1950.  The tactical situation did not allow a positive check.

	c.  Casualty Report, dated 16 April 1951, indicated that he was previously reported in MIA but he was KIA on 3 December 1950.  Accordingly, DA published AGO Form 0709 on 17 May 1951 awarding him a posthumous Purple Heart.

	d.  Casualty Report, dated 18 December 1951, confirming he was being held in a POW status.

	e. Casualty Report, dated 5 November 1951, indicated that he had been MIA since 3 December 1950 and not KIA as previously reported and that the Report of Death, dated 23 April 1951, would be cancelled. 

	f.  Casualty Report, dated 14 August 1953, indicated that he had returned to military control on 14 August 1953 and would be arriving in CA on 29 August 1953.

9.  In connection with his separation, he underwent a physical examination on an unknown date.  His Report of Medical Examination shows the entry "right knee wound." 

10.  His DD Form 214 further shows he completed 3 years, 8 months, and 7 days of creditable military service, of which 3 years and 19 days was foreign service.  He was honorably discharged on 7 October 1953 in the rank/grade of corporal.

11.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded the Army of Occupation Medal (Japan).

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


13.  The Repatriated Korean Conflict Prisoner of War Roster shows he was captured on 3 December 1950 and released on 14 August 1953.

14.  On 25 October 2010, the Board granted him partial relief in the form of award of the Good Conduct Medal, Korean Service Medal with one bronze service star, United Nations Service Medal, POW Medal, Navy Presidential Unit Citation, National Defense Service Medal, and Republic of Korea War Service Medal.  A DD Form 215 (Correction to DD Form 214) is being processed.

15.  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.  

16.  Section 521a of the National Defense Authorization Act of 1996, authorized award of the Purple Heart to any former POW 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 POW who was wounded on or after that date.  Section 521b specifically stated that award of the Purple Heart for POWs 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.

17.  Army Regulation 635-5 (Separations Document) establishes the standardized policy for preparing and distributing discharge documents.  In pertinent part, it directs that, in the case of POWs, the unit of assignment, country and dates of capture and release will be entered in the "Remarks" section of the discharge document.

DISCUSSION AND CONCLUSIONS:

1.  The witness statement indicates that he personally saw the applicant being hit across the chest as a result of machinegun fire on 3 December 1950.  It appears that his injury was severe enough for the witness to presume the applicant was killed in action.  This specific injury qualifies the applicant for one award of the Purple Heart and correction of his records to show this award.

2.  The evidence of record also shows that, despite the conflicting reports of his duty status, the applicant was confirmed as being captured on 3 December 1950 

in Korea and held as a POW until 14 August 1953.  Although mistreatment of U.S. service members by the North Korean and Chinese forces are well documented, there is insufficient evidence that shows the applicant was injured or wounded during his captivity.  Therefore, there is insufficient evidence to award him a second award of the Purple Heart.

3.  The evidence of record shows he was awarded a posthumous Purple Heart after having been reported KIA.  However, once a determination was made as to his whereabouts and since he was not killed, it is reasonable to presume that this Purple Heart would have or should have been revoked.  In addition, there is insufficient evidence to show he was wounded when he was strafed by an American plane.  Therefore, there is insufficient evidence to award him a third award of the Purple Heart.

4.  The evidence of record shows the applicant was captured on 3 December 1950 in Korea and he was released on 14 August 1953.  Therefore, item 38 (Remarks) should also be corrected to show he was in a POW status as well as showing his unit of assignment, country and dates of capture and release.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___X____  ___X___  ___X____  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20090015790, dated 25 February 2010.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  awarding him the Purple Heart for wounds received in action on 3 December 1950 and adding it to his DD Form 214; and

	b.  adding to item 38 of his DD Form 214 the entry "Prisoner of War: Battery B, 57th Field Artillery Battalion, Korea; 3 December 1950 to 14 August 1953."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to two additional awards of the Purple Heart.



      _______ _ 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)                                         AR20100013322





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100013322



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1