IN THE CASE OF:	 

		BOARD DATE:	    6 September 2012

		DOCKET NUMBER:  AR20120005108 


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 being held as a prisoner of war in the Korean conflict, a Chinese guard injured him by striking his head with the butt of his rifle.  
3.  The applicant provides no additional evidence in support of his request.

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 7 August 1950.  He served as a tailor and as a rifleman.  

3.  On 15 March 1951, he began his service in the Republic of Korea.
4.  On 23 April 1951, he was captured by communist forces and held as a prisoner of war.  In February 1953, he was diagnosed with acute appendicitis and pulmonary tuberculosis, resulting in his repatriation on 24 April 1953.  

5.  At the time of his repatriation he was hospitalized, first in Japan and later, on 31 July 1953, at Valley Forge Army Hospital in Pennsylvania.  A medical board was held and the decision was made to place him on the temporary disability retired list (TDRL) on 30 September 1953.   

6.  On 30 September 1953, he was honorably retired by reason of temporary disability and placed on the TDRL.  The DD Form 214 (Report of Separation from the Armed Forces of the United States) he was issued shows he was credited with 3 years, 1 month, and 24 days of total net service, including 2 years, 
2 months, and 11 days of foreign service.  

7.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded the:

* Army Good Conduct Medal
* National Defense Service Medal
* Korean Service Medal with 2 bronze campaign [service] stars
* United Nations Service Medal 

8.  On 30 April 1987, the Chief, Military Awards Branch, U.S. Army Military Personnel Center (MILPERCEN), Alexandria, VA, replied to the applicant's request for award of the Purple Heart and the Combat Infantryman Badge (CIB). In his reply, the MILPERCEN official noted that he was entitled to the CIB; however, he was not entitled to award of the Purple Heart, since his injuries resulted from maltreatment and poor living conditions while in captivity.  He noted that as a general rule, prisoners of war who were injured while in captivity during the Korean War as a result of enemy mistreatment or brutality are not considered eligible for the Purple Heart, as such injuries were considered to be the result of a criminal act rather than a legal act of war.  

9.  His available record does not contain orders for the Purple Heart.  
His available record contains no documentation, and he has provided no documentation, that shows he received any injuries or wounds prior to or during his period of captivity.  Finally, his available record contains no documentation that details his mistreatment by enemy captors.

10.  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.

11.  During World War II and the Korean War the Purple Heart was not awarded to Soldiers who had been injured while in captivity or while being taken captive.  Those injuries were considered to be the result of war crimes and not the result of a legal action of war.  War Department policy, at that time, required that wounds must have been received in action against the enemy or, in other words, incurred in actual combat.  Executive Order 11016, dated 25 April 1962, provided more latitude with respect to award of the Purple Heart to prisoners of war, as well as the authority to award the decoration to wounded Soldiers even in the absence of a formal declaration of war.  The issue as to whether this change in policy would be implemented retroactively to prisoners of war from World War I, World War II, and the Korean War was considered several times.  Initially it was decided that the change in policy would not be retroactively implemented.  It was concluded that it would be inappropriate for the Department of Defense to retroactively change the standards and, in effect, countermand the decisions of the past leadership.  However, as part of the National Defense Authorization Act (NDAA) of 1996, Congress authorized award of the Purple Heart to any former prisoner of war who was wounded before 25 April 1962 while held as a prisoner of war, or while being taken captive, in the same manner as a former prisoner of war who was wounded on or after that date.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the Purple Heart for injuries he received from his captors in North Korea.  

2.  Notwithstanding the available medical documentation, the evidence of record fails to confirm he suffered a head wound, or any other wound, that resulted from direct combat, enemy engagement, or mistreatment by enemy captors.  Regrettably, 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 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)                                         AR20080016060



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ABCMR Record of Proceedings (cont)                                         AR20120005108



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