IN THE CASE OF:	 

		BOARD DATE:	  3 November 2011

		DOCKET NUMBER:  AR20110010365 


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 that while stationed in Korea during the Korean War, he suffered a head injury while trying to evacuate as the Chinese were heading toward his location.  He states that while trying to avoid being engaged, the jeep he was traveling in crashed and he was injured, requiring treatment at Tokyo General Hospital in Japan.  He concludes by stating that with the recent changes to Army regulations as to how and when the Purple Heart should be awarded, he should be awarded the Purple Heart for his head injury.

3.  The applicant provides:

* DD Form 214 (Report of Separation from the Armed Forces of the United States) covering the period 2 June 1948 through 4 June 1951
* Department of the Army Reserve Personnel (DARP) Form 3069 (Transcript of Military Record) covering the period 5 June 1951 through 9 November 1954
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) covering the period 10 November 1954 through 15 August 1957
* DD Form 214 covering the period 16 August 1957 through 15 August 1963
* DD Form 214 covering the period 16 August 1963 through 15 August 1966
* DD Form 214 covering the period 15 August 1966 through 31 December 1968
* DD Form 215 (Correction to DD Form 214), dated 5 November 1975
* Letter of Appreciation from the Commander, 53rd Transportation Company, dated 16 March 1962
* Letter of Commendation, dated 24 November 1964
* Certificate of Achievement, dated 10 December 1965, with transmittal memorandum and 1st, 4th, and 5th endorsements
* Letter of Appreciation from the Commander, 4th Battalion, 3rd Brigade, Fort Ord, CA, dated 2 December 1966
* Letter of Commendation from the Commander, 4th Battalion, 3rd Brigade, Fort Ord, dated 16 March 1967
* Army Commendation Medal Citation
* Special Order Number 205, Department of the Army, dated 18 October 1968
* Certificate in Recognition of 10 Years of Service in the Government of the United States of America, dated 8 November 1991

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 2 June 1948.  He completed training and he was awarded military occupational specialty (MOS) 5729 (Pioneer).  He later reclassified and was awarded MOS 12B (Combat Engineer), MOS 76K (General Supply Specialist), and MOS 76Y (Unit Supply Specialist).  The majority of his service was spent in MOS 76Y.

3.  Section 7 (Combat Record) of his WD AGO Form 24A (Service Record) shows he served in Korea from 18 July 1950 to 14 December 1950.

4.  Item 18 (Head, Face, Neck, and Scalp) of his Standard Form 88 (Report of Medical Examination) contains an "X" in the "abnormal" block, along with the note "brain concussion, in jeep wreck December 1950."  His available medical documentation does not link his injury to direct combat or enemy engagement.

5.  On 31 December 1968, he retired after 20 years of honorable and faithful service in the rank/grade of staff sergeant/E-6.

6.  His record contains five different DD Forms 214, none of which indicate he was wounded in combat or previously awarded the Purple Heart.

7.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) is blank indicating he did not sustain any wounds as a result of hostile action during his military service.  Additionally, his available records do not contain orders for the Purple Heart.

8.  The Purple Heart was established by General George Washington in 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 wounds sustained in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify 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 applicant contends he should be awarded the Purple Heart.  Notwithstanding the available medical documentation, the evidence of record fails to confirm his head wound resulted from direct combat or enemy engagement.  As he stated, he was injured while trying to avoid being engaged by the enemy.  In view of the foregoing, there is an insufficient basis to grant relief 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 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)                                         AR20080016060



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ABCMR Record of Proceedings (cont)                                         AR20110010365



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