BOARD DATE:	  16 May 2013

		DOCKET NUMBER:  AR20120019235 


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 a second award of the Purple Heart.

2.  The applicant states he received two awards of the Purple Heart. 

3.  The applicant provides his DD Form 214.

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 complete 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 for 
3 years on 17 July 1950.  At the time of separation, he held military occupational specialty 949 (Ammunition Renovator) and most significant duty assignment (i.e., last duty assignment) was with the 9710th Test Service Unit.  

4.  His DD Form 214 shows he completed 3 years of creditable active service of which 5 months and 7 days was foreign service.  It also shows he was awarded or authorized the:

* Combat Medical Badge (Special Orders Number 158, Headquarters, 23rd Infantry, August 1950)
* Purple Heart (Special Orders Number 23, Headquarters, 23rd Infantry, October 1950)
* United Nations Service Medal
* Korean Service Medal with three bronze service stars

5.  Item 26 (Wounds Received as a Result of Action with Enemy Forces) of his DD Form 214 shows the entry "Gunshot wound - left arm - near Yalu River 28 November 1950." 

6.  His reconstructed records do not contain orders awarding him a second award of the Purple Heart.  Additionally, his medical records are not available for review with this case and his name is not shown in the Korean Casualty File.

7.  There are two records of information from the hospital admissions cards created by the Office of the Surgeon General (OTSG) for the year 1951:

	a.  One document shows he was wounded on 28 November 1950 with a diagnosis of fracture, compound, comminuted, with no nerve or artery involvement; humerus area; as a direct result of action against or by an organized enemy and with a causative agent as fragment or explosion.

	b.  A second document shows he was wounded on 28 November 1950 with a diagnosis of fracture, compound, comminuted, with no nerve or artery involvement; humerus area; as a direct result of action against or by an organized enemy and with a causative agent as small arms bullet. 


8.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound 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.  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.

	a.  A Purple Heart is authorized for the first wound suffered under conditions indicated above, but for each subsequent award an Oak Leaf Cluster will be awarded to be worn on the medal or ribbon.  Not more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent.

	b.  A wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions listed above.  A physical lesion is not required, however, the wound for which the award is made must have required treatment by medical personnel and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant sustained a combat injury in Korea on 28 November 1950 near the Yalu River.  He was awarded the Purple Heart.  There is insufficient evidence to support a second award as there is no record of the injury or its treatment.  The OTSG record shows two listings for the applicant.  However, both are on the same day (28 November 1950) for the same injury (humerus).  

2.  The criteria for award of the Purple Heart requires the submission of substantiating evidence to verify the injury or wound was the result of hostile action, the injury or wound must have required treatment by personnel, and the medical treatment must have been made a matter of official record.

3.  There is no evidence in his reconstructed records and he did not provide any evidence that shows he was wounded or injured a second time as a result of hostile action, treated for such wounds, or that his treatment was made a matter of official record.  In the absence of documentary evidence that shows he was wounded or injured a second time as a result of hostile action and treated for those wounds, regrettably, there is insufficient evidence upon which to base a second 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)                                         AR20120019235



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ABCMR Record of Proceedings (cont)                                         AR20120019235



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