IN THE CASE OF:	  

		BOARD DATE:	  16 November 2010

		DOCKET NUMBER:  AR20100013759 


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 two additional awards of the Purple Heart.

2.  The applicant states he sustained the following wounds on 12 December 1953 in Korea:

* gunshot wound to his left shoulder
* gunshot wound to his right shoulder
* shrapnel wounds to his head and neck

3.  The applicant provides a copy of Department of Veterans Affairs (VA) compensation award letter, dated 29 June 1993; VA Form 21-138 (Statement in Support of Claim); DD Form 215 (Correction to DD Form 214); DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); letter from the Army Board for Correction of Military Records (ABCMR), dated 29 January 2010; and medical information from the Department of the Army Office of the Surgeon General Hospital Admission Card Data Files.

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 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.

3.  The applicant's DD Form 214 shows he was inducted into the Army of the United States on 30 November 1951 and was released from active duty on 18 December 1953.  His DD Form 214 shows he was a prisoner of war (POW) from 23 July 1952 to 24 August 1953.

4.  His DD Form 214 does not show entitlement to the Purple Heart.

5.  The applicant provided a declassified copy of POW records.  Phase I of the Questionnaire for Recovered United Nations POW's shows he was captured on 23 July 1952 by an unknown Chinese unit.  He was ambushed while on patrol with his squad, was wounded, and was captured.

6.  His name is listed once on the Korean Casualty Roster for wounds received on 22 July 1952 in Korea.

7.  Letter orders published by the Office of the Adjutant General on 10 February 1954 awarded the applicant the Purple Heart for wounds received in action in Korea on 22 July 1952.

8.  The 29 June 1993 VA compensation letter indicates the applicant was granted a combined disability rating of 80 percent for a back condition (40 percent), shell fragment wound residuals in his left shoulder (30 percent), shell fragment wound residuals in his right shoulder (20 percent), psychiatric conditions (30 percent), shrapnel wound residuals of the neck (10 percent), and a shrapnel wound scar on his right earlobe (0 percent).

9.  The applicant was issued a DD Form 215, dated 12 February 2003, which added the Purple Heart to his DD Form 214.

10.  The applicant provided a VA Statement in Support of Claim in which he states:
* he believes he qualifies for a second and third award of the Purple Heart because he was wounded three different times during the same battle
* he was first shot in the right shoulder and arm
* he was then shot again in the left upper arm and shoulder
* he was hit in the face, side, stomach, and neck at the same time when a grenade landed close to him
* he also fractured vertebrae in his back
* he was captured and carried on a stretcher for about 3 days
* he was taken to a village where he was treated and operated on after about a week

11.  On 27 May 2009, the applicant applied to this Board requesting a second and third award of the Purple Heart.  On 29 January 2010, the ABCMR administratively closed the applicant's application by letter based on insufficient information available for the Board to determine if he was entitled to more than one Purple Heart.

12.  The applicant's personnel records do not include orders which show he was awarded a second or third Purple Heart.

13.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained as a direct 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 military personnel, and the medical treatment must have been made a matter of official record.  Not more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force explosion, or agent.

14.  Army Regulation 600-8-22 states that an oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Purple Heart.

15.  Paragraph 1-18 of Army Regulation 600-8-22 states that only one decoration will be awarded to an individual for the same act, achievement, or period of meritorious service.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence of record does not indicate the applicant was wounded in three separate incidents on 12 December 1953 in Korea.

2.  The evidence of record shows he was ambushed while on patrol with his squad, was wounded, and was captured on 22 July 1952 in Korea.  
3.  His name is listed only once on the Korean Casualty Roster.

4.  The applicant contends he sustained multiple wounds on 12 December 1953.  However, in the absence of sufficient evidence to confirm the applicant was wounded a second or third time in separate incidents as a result of hostile action in Korea, whether on 12 December 1953 or on 23 July 1952, there is, regrettably, insufficient evidence for granting additional awards of 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)                                         AR20100013759



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ABCMR Record of Proceedings (cont)                                         AR20100013759



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