IN THE CASE OF:	  

		BOARD DATE:	  14 August 2012

		DOCKET NUMBER:  AR20120003536 


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 a second Purple Heart.

2.  The applicant states the damage to his toe occurred in the battle of Kunnori.  They were surrounded by Chinese and North Korean soldiers for 4 days and 4 nights.  Those Soldiers who were seriously injured were the priority cases.  Less seriously injured Soldiers continued in the battle.

3.  The applicant provides nine pages from his civilian medical records, dated 16 August 2002 to 1 January 2003.

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.  He enlisted in the Regular Army on 23 November 1948.  He served in Korea from 6 September 1950 to 18 January 1951.

3.  A Casualty Report prepared on 18 January 1951 documents he was a battle casualty on 17 January 1951.  He was slightly wounded in his left calf, half way between his ankle and his knee, by gunshot and shell fragments.

4.  A Casualty Report prepared on 25 January 1951 documents he was a battle casualty on 17 January 1951.  He was wounded by a missile gunshot, penetrating his left leg.  He was admitted to Tokyo Army Hospital on 24 January 1951.

5.  Tokyo Army Hospital General Order Number 20, dated 26 January 1951, awarded him the Purple Heart for wounds received on 17 January 1951.

6.  On 22 November 1951, he was discharged to immediately reenlist.  His DD Form 214 (Report of Separation from the Armed Forces of the United States) effective 22 November 1951 shows he was "authorized but not awarded" the Purple Heart.  He reenlisted on 23 November 1951 and served continuously until his discharge on 22 November 1957.

7.  The National Archives and Records Administration (NARA) Korean War Casualty File shows he was seriously wounded in action by a missile in South Korea on 17 January 1951.

8.  The medical records he provided show treatment for his fourth left toe that ultimately resulted in its removal.  In a letter, dated 16 August 2002, Dr. K____ stated the applicant's left lower leg and foot were injured during the Korean War and he has had chronic pain and burning on the plantar aspect of his left foot as a result.  He also had several pieces of shrapnel pierce his left foot and lower leg, one that may have potentially entered the fourth left toe.

9.  Army Regulation 672-5-1 (Decorations and Awards), then in effect, stated the Purple Heart was awarded to any member of the Armed Forces of the United States and to any civilian citizen of the United States serving with the Army who was wounded either in action against an armed enemy of the United States or as a direct result of an act of such enemy, provided the wound necessitated treatment by a medical officer.

	a.  Substantiating evidence must have been provided to verify the wound was the result of hostile action, the wound must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record.

	b.  Not more than one award of this decoration was made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent.

DISCUSSION AND CONCLUSIONS:

1.  The casualty reports and the NARA Korean War Casualty File verify he was wounded in action on 17 January 1951 in South Korea.  He was awarded a Purple Heart for wounds received on 17 January 1951.

2.  There is no evidence he was wounded by hostile action or received treatment for a wound received on a date other than 17 January 1951.

3.  His doctor stated his problems with his fourth left toe were a result of his wounds to his left leg and foot in Korea and that he may have had a piece of shrapnel pierce his fourth left toe.  This indicates his wound to his fourth left toe was a result of the same incident in which he received wounds to his left calf.

4.  According to the regulation in effect at the time, not more than one award of the Purple Heart will be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent.

5.  In view of the above, there is an insufficient basis to award a second 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 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 this action in no way diminishes the sacrifices made by the applicant 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)                                         AR20120003536



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120003536



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1