IN THE CASE OF:	  

		BOARD DATE:	    24 May 2012

		DOCKET NUMBER:  AR20110024091 


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 for wounds received while participating in the Korean War.

2.  The applicant states that he was not awarded the Purple Heart due to an administrative error.  In the Fall of 1954, while fighting enemy forces at "Outpost Tom", west of the Chorwon Valley in North Korea, he was injured.  He was in a bunker with another Soldier and  a hand grenade exploded.  He was medically evacuated to a local military hospital for treatment.  He later returned to his unit and then the Continental United States.

3.  The applicant provides:

* Compensation Examination Notification
* VA Form 10-2545 (Veterans Administration - Report of Medical Examination for Disability Evaluation)
* VA Form 8-564 (Rating Sheet)
* Baptist Primary & Senior Healthcare Established Patient Form
* St. Mary's Health System Final Report
* NA Form 13075 (Questionnaire About Military Service)
* NA Form 13055 (Request for Information Needed to Reconstruct Medical Data)
* letter from Army Review Boards Agency, Case Management Division



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 for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  However, the reconstructed records contain sufficient documentation and documentation provided by the applicant for the Board to conduct a fair and impartial review of this case.  

3.  The applicant's available military records show he was inducted into the Army of the United States on 24 November 1952.  He served overseas in Korea for 1 year and 24 days.  He was assigned to Company I, 23rd Infantry Regiment.  

4.  He was honorably released from active duty on 23 November 1954 and he was transferred to the Army Reserve.  His DD Form 214 (Report of Separation from the Armed Forces of the United States) does not list the Purple Heart.

5.  Item 29 (Wounds Received as a Result of Action with Enemy Action), of his DD Form 214, shows the entry, "None" to indicate he was not wounded while he served in Korea.  He placed his signature in Item 48 for the individual being separated to indicate that the information recorded on the form was correct and complete to the best of his knowledge.

6.  There are no orders or evidence in the available record that shows he was awarded the Purple Heart.  There is also no evidence that indicates he was wounded or treated for wounds as a result of hostile action during his period of service in Korea.  

7.  He provides the following:

   a.  VA Form 10-2545, dated 4 March 1955, which shows he underwent a compensation examination.  The form noted that the applicant sustained shell fragment wounds (SFWs) to both buttocks in Korea in 1954, was hospitalized for 8 days, and the shrapnel was removed (was very superficial).  All scars were non-adherent and asymptomatic.

	b.  VA Form 8-564, dated 31 March 1955, which shows the examination at time of discharge from service showed scars of both buttocks with a recorded history of veteran having received wounds of the buttocks in Korea.  No clinical records had been received indicating the nature or extent of the wounds or the treatment received.  The form described the findings of the 4 March 1955 VA examination.

   c.  Baptist Primary & Senior Healthcare Established form, dated 3 September 2009, which shows he received treatment for right hip pain.  The form also noted he was wounded in Korea and had shrapnel wounds.
   
   d.  St. Mary's Health System Final Report, dated September 2009, which shows he underwent an x-ray of the right femur on 8 September 2009.  It was revealed that small metallic densities projecting over the right lower pelvis and right proximal femur.  Given history of previous injury, the x-ray interpreter suspected those represented small shrapnel fragments.
   
   e.  NA Forms 10-13075 and 13055 he completed in request for his military medical records.

8.  The Korean War Casualty List does not list his name.

9.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against the 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, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  By regulation, to be awarded the Purple Heart, it is necessary to establish that a Soldier was wounded or injured in action.  There is no evidence available, and the applicant has provided insufficient evidence, which shows he was wounded or treated for wounds as a result of hostile action while serving in Korea.  His name is not recorded on the Korean War Casualty File and Item 29 of his DD Form 214 has the entry, "None" to indicate he did not receive a wound in action against a hostile force.  Based on the foregoing, he does not meet the regulatory requirements for award of the Purple Heart; therefore, there is insufficient evidence to award him the Purple Heart and its addition to his DD Form 214.  

2.  The documentations he provided and his contentions were carefully considered; however, without sufficient evidence that he was treated for a wound or wounds received in 1954 as a direct result of enemy action and that his injuries were made a matter of official record of the Army, he is not entitled to award of the Purple Heart.  In all cases the burden of proof rests with the applicants to submit substantiating proof of their entitlement for 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)                                         AR20110024091





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ABCMR Record of Proceedings (cont)                                         AR20110024091



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