BOARD DATE:	  10 November 2011

		DOCKET NUMBER:  AR20110010253 


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 correction of his WD AGO Form 53-55 (Enlisted Record and Report of Separation) to reflect award of the Purple Heart for injuries he suffered in North Korea.  

2.  The applicant states the Purple Heart was issued to him but his WD AGO Form 53-55 does not show it.  

3.  The applicant did not provide any evidence.

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 records show he was inducted into the Army of the United States and entered active duty at Fort Buchanan, PR, on 4 December 1944.  He was trained in and held military occupational specialty (MOS) 745 (Infantryman). 

3.  He served with C Company, 296th Infantry, in the Pacific Theater of Operations from 11 August 1945 to 19 February 1946.  He completed 1 year, 3 month, and 25 days of total active service, all of which was foreign service, and he was honorably separated on 28 March 1946.  

4.  His WD AGO Form 53-55 shows in:

* item 33 (Decorations and Citations) the American Theater Service Ribbon, World War II Victory Medal, Asiatic-Pacific Theater Service Ribbon, two overseas service bars, and the Good Conduct Medal
* item 34 (Wounds Received in Action) contains the entry "None"

5.  There is no indication in his available records that he was wounded in action or awarded the Purple Heart during this period of service.

6.  He enlisted in the Regular Army for 5 years on 19 August 1950 and held MOS 1745 (Light Weapons Infantryman).  He arrived in Korea on 23 September 1950 and he was assigned to Company G, 65th Infantry.

7.  On 25 October 1950, he accidentally shot himself in the left foot.  He sustained a fracture to the proximal shaft of the second metatarsal with lateral displacement of the distal fragment and a fracture to the third metatarsal with destruction to the shaft.  

8.  His records contain a WD AGO Form 0365 (Non-Battle Casualty Report) that shows he sustained a self-inflicted wound on 25 October 1950 

9.  Section 8 (Wounds Received through Enemy Action) of his WD AGO Form 24 (Service Record) is blank and section 21 (Medals, Decorations, and Citations) of this form does not reflect the Purple Heart.

10.  His records do not contain official orders awarding him the Purple Heart.

11.  After initial treatment in Korea, he was transferred to Osaka, Japan, on 15 November 1950 and ultimately to Fort Sam Houston, TX, on 21 January 1951 and Fort Buchanan, PR, on 12 June 1951.  He underwent medical treatment and therapy and he was considered by a medical evaluation board that referred him to a physical evaluation board (PEB).
12.  On 2 June 1953, a PEB convened at Rodriguez Army Hospital, Fort Brooke, PR, and determined he was physically unfit to perform the duties of his grade or MOS due to the injury he suffered on 24 October 1950.  The PEB recommended his permanent retirement by reason of physical disability.

13.  He was retired on 31 July 1953 by reason of physical disability.  His DD Form 214 (Report of Separation from the Armed Forces of the United States) show she completed 2 years, 11 months, and 1 day of active service during this period of service.  His DD Form 214 also shows in:

* item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) the Combat Infantryman Badge, Korean Service Medal with two bronze services tars, World War II Victory Medal, and Good Conduct Medal
* item 29 (Wounds Received as a Result of Action with Enemy Forces) the entry "None"

14.  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:

	a.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:  injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and/or concussion injuries caused as a result of enemy generated explosions.

	b.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows:  frostbite or trench foot injuries; heat stroke; food poisoning not caused by enemy agents; chemical, biological, or nuclear agents not released by the enemy; battle fatigue; disease not directly caused by enemy agents; accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; self-inflicted wounds, except when in the heat of battle and not involving gross negligence; post-traumatic stress disorders; and/or jump injuries not caused by enemy action.




DISCUSSION AND CONCLUSIONS:

1.  The applicant completed two periods of service.  He served from 4 December 1944 to 28 March 1946 and he was issued a WD AGO Form 53-55.  He also served from 19 August 1950 to 31 July 1953 and he was issued a DD Form 214 for this period of service.  

2.  The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

3.  With respect to his first period of service, there is no evidence in his official records that shows he was wounded or injured as a result of hostile action or treated for such wounds.  Regrettably, absent evidence which conclusively shows he sustained wounds or injuries as a result of hostile action, that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is insufficient basis for awarding him the Purple Heart.

4.  With respect to the second period of service, the evidence of records shows the applicant suffered an accidental self-inflicted wound that led to his medical evacuation, treatment, and ultimate retirement by reason of physical disability.  By regulation, self-inflected wounds do not justify award of the Purple Heart.  

5.  Notwithstanding the applicant's sincerity, absent evidence which conclusively shows he sustained wounds or injuries as a result of hostile action (emphasis added), that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is insufficient basis for awarding him 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:

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 and all others concerned to know that this action in no way diminishes the sacrifices made by the FSM 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)                                         AR20110010253



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ABCMR Record of Proceedings (cont)                                         AR20110010253



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