IN THE CASE OF:	  

		BOARD DATE:	  20 March 2012

		DOCKET NUMBER:  AR20110018212 


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 DD Form 214 (Report of Separation from the Armed Forces of the United States) to show award of the Purple Heart for wounds and concussions sustained in Korea.

2.  The applicant states he received wounds and concussions in the Korean War which were not noted at the time of his discharge from service.  He receives   100 percent disability from the Veterans Administration (VA) for these injuries; however, he was never issued the Purple Heart.  He further states most of his injuries and concussions were treated by field medics.  He states he received an injury to his face from a rifle butt stroke to his chin during a hand-to-hand bayonet attack and a concussion injury to his right shoulder on or about October 1952, when he stuck his head out of a foxhole at the wrong time.  He further states he did not receive his medals and records until 1995 due to a fire at the records center in St. Louis, Missouri.  

3.  The applicant provides:

* a self-authored statement
* DD Form 214
* 9-page VA Rating Decision
* WD AGO Form 8-24 (Reports Control Symbol MED 19)




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 enlisted in the Regular Army on       22 March 1951.  This form also shows he held an infantry specialty at the time of his separation.   

4.  His DD Form 214 further shows he completed 3 years, 2 months, and 25 days of creditable active military service, of which 1 year, 1 month, and 12 days was foreign service.  He was honorably discharged from active duty on 19 June 1954.

5.  Item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the Korean Service Medal with three bronze service stars, United Nations Service Medal, Combat Infantryman Badge, National Defense Service Medal, Bronze Star Medal with “V” Device, and the Silver Star.

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

7.  Section 8 (Wounds Received Through Enemy Action) of his DA Form 20 (Soldier Qualification Card) is blank.

8.  His records contain a Radiographic Report dated 8 July 1953, which shows the applicant received an X-ray of his right shoulder.  The provisional diagnosis was “pain in the right shoulder – possible arthritis.”  The radiographic report revealed no evidence of bone or joint pathology.

9.  His reconstructed records do not contain orders awarding him the Purple Heart and his name is not shown in the Korean Casualty File.

10.  The applicant submitted and his record contains a WD AGO Form 8-24 which shows he was seen at the out-patient clinic at Fort Crowder, Missouri on 7 July 1953.  The document states, “off and on, since coming back to the U.S. from Korea in January, has had pain in the right shoulder.  Was “knocked out” about an hour in October by concussion, but did not injure shoulder that he knows of.  Might have arthritis.”  This form also shows that on 10 July 1953 the applicant’s X-ray results were negative.  There is no indication of how the applicant was “knocked out.”

11.  He submitted a VA ratings decision letter dated 2 May 2005, advising him that he was awarded service-connected disability compensation for a right shoulder strain.  In addition, the applicant notes a 9-centimeter scar located on his chin was the result of a rifle butt stroke and not a cold weather injury as deemed by the VA. 

12.  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.  

	a.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are 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; and injury caused by vehicle or aircraft accident resulting from enemy fire.
	
   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 jump injuries not caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  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 military medical personnel, and the medical treatment must have been made a matter of official record.

2.  Medical documentation in his file shows upon his return from Korea, he suffered from right shoulder pain.  He received an X-ray and the results revealed no evidence of bone or joint pathology.  The additional documentation he submitted (a VA rating decision letter) advised him that he was awarded service-connected disability compensation for a right shoulder strain and for a cold weather injury to his chin.  

3.  The VA does not establish a military member's entitlement to award of the Purple Heart.  Furthermore, although a VA record generally does not, by itself, establish entitlement to award of the Purple Heart, an applicant may submit a VA file as part of his or her overall evidence in support of this award.  

4.  Notwithstanding the applicant’s sincerity, there is no evidence in his reconstructed records nor did he provide any evidence which conclusively 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 or that he was awarded the Purple Heart. 

5.  In the absence of documentary evidence which conclusively 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 correct his DD Form 214. 

6.  This action in no way diminishes the sacrifices made by the applicant in service to our Nation.  He and all Americans should be justifiably proud of his service in arms.

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)                                         AR20110018212



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110018212



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1