IN THE CASE OF:	  

		BOARD DATE:	  19 July 2011

		DOCKET NUMBER:  AR20100028364 


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.  He makes a statement and provides documents through counsel.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be awarded the Purple Heart.

2.  Counsel states it was left off of his record.  He was injured [in a combat theater] and it was never recorded correctly.  

3.  Counsel provides:

* a Command Report for Headquarters, 82nd Antiaircraft Artillery (AAA) Automatic Weapons (AW) Battalion for the period 1 to 28 February 1951
* e-mail correspondence 
* rosters for Battery B, 82nd AAA AW Battalion, dated 19 July 1950 and 31 January 1951
* a Standard Form 88 (Report of Medical Examination)
* a Standard Form 89 (Report of Medical History) 
* a Statement of Service
* DD Forms 214 (Report of Separation from Active Duty) covering multiple periods of service


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 enlisted in the Regular Army on 5 September 1947 and was honorably discharged on 16 October 1947.  Following a break in service, he enlisted again in the Regular Army on 6 January 1949 and served until his honorable retirement on 30 November 1978.  He completed 30 years and 7 days of total active service.

3.  A DD Form 230 (Service Record) shows:  

* in Section 3 (Organizations to which Assigned and Attached) he was assigned to: 

* Battery B, 82nd AAA AW Battalion, from 14 July 1950 to 10 January 1951
* 155th Station Hospital from 11 January to 7 February 1951
* 172d Station Hospital from 8 February to 12 April 1951
* the Japan Replacement Training Center (RTC) from 13 to 15 April 1951
* 8th Station Hospital from 16 April to 4 November 1951

* in Section 4 (Service Outside Continental United States) he arrived in Korea on 4 August 1950, departed on 10 January 1951, and arrived in Japan on 11 January 1951
* no entries in Section 8 (Wounds Received Through Enemy Action) 
* no entry for the Purple Heart in Section 9 (Medals, Decorations, and Citations)

4.  Section 9 of his DD Form 230 includes an entry indicating he was authorized an award by General Orders Number 88, issued by Headquarters, 8th Station Hospital, dated 16 May 1951.  During the processing of this case, a staff member of the Army Human Resources Command Awards and Decorations Branch (ADB) located these orders.  The orders amended three Purple Heart orders issued by the same headquarters.  They do not show the applicant's name.  The ADB also reviewed the amended orders and did not find the applicant's name.  Further review of Korean War era historical records by ADB failed to locate orders awarding him the Purple Heart.

5.  His name does not appear in the Korean War Casualty File maintained by the National Archives and Records Administration.

6.  His service medical records are not available for the Board to review.  However, counsel provides a Standard Form 88 and a Standard Form 89, both dated 9 January 1952.  

   a.  The Standard Form 88 shows he had a spleenectomy in 1951 after an injury, a healed left upper rectus vertical scar and a healed scar of a diagonal wound over the 10th rib.  
   
   b.  The Standard Form 89 shows his spleenectomy was performed at the 1st Mobile Unit, Korea.  Neither form shows the cause of his scars or the circumstances of the injury that led to his spleenectomy.  

7.  Counsel provides a Command Report for Headquarters, 82nd AAA AW Battalion, for the period 1 to 28 February 1951.  Counsel has highlighted a portion of the report pertaining to Battery B's operations from 13 to 16 February 1951.  The report shows the battery suffered five casualties during the period.  The casualties are not named in the report.

8.  Counsel provides e-mail correspondence showing:

* the applicant's son stated the applicant was wounded when the vehicle he was riding in was blown up
* the applicant was treated on the hospital ship USS Repose
* an attempt to obtain records of his treatment on USS Repose from the U.S. Navy resulted in referral to the Army
* a veteran who served with the applicant stated he had no first-hand knowledge of his wounds but remembered being told he had been evacuated

9.  Counsel provides rosters for Battery B, 82nd AAA AW Battalion, showing the applicant was assigned to the unit on 31 July 1950 and 31 January 1951.  

10.  Army Regulation 600-8-22 (Military Awards) states 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:

The available documentation shows the applicant incurred an injury that led to him undergoing a spleenectomy.  Unfortunately, the available documentation does not show the cause of his injury.   Therefore, there is an insufficient basis for awarding him the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  __X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant, counsel, and all others concerned to know this action in no way diminishes the sacrifices the applicant made in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   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)                                         AR20100028364





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ABCMR Record of Proceedings (cont)                                         AR20100028364



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