IN THE CASE OF:
BOARD DATE: 7 April 2011
DOCKET NUMBER: AR20100024136
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.
2. The applicant states:
* he was wounded in September 1950 in Korea
* he had the Purple Heart medal thrown at him in bed while he was hospitalized at Fort Devens, MA
* he felt this was not proper protocol so he threw the medal back
* that was the last time he saw the Purple Heart medal
* he feels he deserves this medal because he was injured in combat
* he was hit in the back with shrapnel around the kidney area
3. The applicant provides:
* a WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) for the period 29 January 1946 through 29 July 1946
* a WD AGO Form 53-55 for the period 30 July 1946 through 22 April 1947
* a DD Form 214 (Report of Separation from the Armed forces of the United States), for the period 25 July 1950 through 8 August 1951
* two National Archives and Records Administration (NA) Forms 13038 (Certification of Military Service), both dated 15 October 2007
* a self-authored statement describing the dates of his injuries
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 applicants 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, and has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants 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 applicants 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. His WD AGO Form 53-55 for the period ending 29 July 1946 shows he was inducted into the Army of the United States (Air Corps) on 29 January 1946 and he was honorably discharged on 29 July 1946 for enlistment in the Regular Army (RA). He enlisted in the RA on 30 July 1946 and was honorably discharged for the convenience of the Government on 22 April 1947.
4. He again enlisted in the RA on 25 July 1950 and he was honorably discharged for the convenience of the Government on 8 August 1951.
5. Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not show the Purple Heart as an authorized award. Item 29 (Wounds Received as a Result of Action with Enemy Forces) of his DD Form 214 shows the entry "None."
6. There are no orders for the Purple Heart in the available records.
7. His name does not appear on the Korean casualty roster.
8. In support of his claim, he provided a personal account of his injury. He attests:
* he was wounded with pain in the kidney area on 7-8 September 1950 in Korea
* a few days later he was hospitalized in Japan (no treatment available)
* he was shipped to the United States
* he was hospitalized in New Hampshire (no treatment - bed rest only)
* in October 1950 he was reassigned for duty
* he was treated for severe pain and kidney stones detected by x-rays in November 1950
* he was hospitalized for pneumonia and kidney infection in December 1950
* he remained in the hospital until his discharge in August 1951
* he was treated for kidney stones and pain in 1954, 1959, 1968, 1980, 1982, 1984, and 1985
9. 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 by medical personnel, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
He contends he was wounded in September 1950 in Korea. However, there are no orders for the Purple Heart in the available records. There is also no evidence his reconstructed records and he did not provide any corroborating evidence that shows he was wounded or injured as a result of hostile action in Korea. Regrettably, there is insufficient evidence to support 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) AR20100024136
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ABCMR Record of Proceedings (cont) AR20100024136
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