IN THE CASE OF:	  

		BOARD DATE:	  5 May 2011

		DOCKET NUMBER:  AR20100026852 


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 the head while on guard duty during the Korean War.  In late July or early August 1953, he was on guard duty with the 45th Tank Battalion when he started having a brain seizure.  At the same time, he was attacked by a North Korean Soldier who threw him on the ground causing his skull to fracture.  He lost consciousness and memory from there.  He also states that the incident occurred on 29 July 1953, he was assigned to the 289th Tank Battalion, and that he was transported to the hospital with no memory of how he got there.  He then states that it occurred while assigned to the 279th Infantry Regiment.  He concludes by saying that he has dealt with the seizures all his life which were made worse by the incident and his Army service.  It had caused him memory loss.

3.  The applicant provides his DD Form 214 (Report of Separation from the Armed Forces of the United States). 

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 his 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 entered active duty in Cincinnati, OH, on 17 February 1953.  This form further shows he held military occupational specialty 1795 (Tank Crewmember) at the time of his separation and that his most significant duty assignment (i.e., last duty assignment) was with the Tank Company, 35th Infantry Regiment.

4.  His DD Form 214 further shows he completed 1 year, 11 months, and 17 days of creditable active military service, of which 1 year, 6 months, and 3 days was foreign service.  He was honorably released from active duty on 3 February 1955.

5.  Item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the Korean Service Medal, National Defense Service Medal, United Nations Service Medal, and Army Good Conduct Medal.

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

7.  His reconstructed records do not contain orders awarding him the Purple Heart.  Additionally, his medical records are not available for review with this case and his name is not shown in the Korean Casualty File.

8.  The Purple Heart was established by General George Washington at Newburgh, NY, on 7 August 1782 during the Revolutionary War.  It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action.

9.  Army Regulation 600-8-22 (Military Awards) provides 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart.

2.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather, he or she is entitled to it upon meeting specific criteria.  Award of the Purple Heart requires a Soldier to have been injured or wounded by hostile action, the wound must have required treatment by medical personnel, and the medical treatment for wounds or injuries received in action must have been made a matter of official record.

3.  There is no evidence in his reconstructed records and he did not provide any evidence that shows he was wounded or injured as a result of hostile action or treated for such wounds or that his treatment was made a matter of official record.  In the absence of documentary evidence that shows he was wounded or injured as a result of hostile action and treated for those wounds, regrettably, there is insufficient evidence upon which to base award 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)                                         AR20100026852





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ABCMR Record of Proceedings (cont)                                         AR20100026852



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