IN THE CASE OF:	  

		BOARD DATE:	  15 August 2013

		DOCKET NUMBER:  AR20120022282 


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 a second award of the Purple Heart (PH). 

2.  The applicant states:

	a.  he was initially awarded the PH for wounds he sustained to his hands and behind his ear;

   b.  he was wounded a second time which led to his right leg amputation above the knee;
   
   c.  he was verbally told before a physical evaluation board (PEB) he would receive an oak leaf cluster (OLC) to signify an additional PH for his second wound; and
   
   d.  he never received the OLC with his PH and it was never added to his DD Form 214 (Report of Separation from the Armed Forces of the United States).
   
3.  The applicant provides:

* Two self-authored statements
* PH establishment history 
* National Personnel Records Center letter

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 record shows he enlisted in the Regular Army on 15 September 1950.  He was trained in and served in the infantry branch.

3.  The applicant's military record includes the following documents:

   a.  121st Evacuation Hospital, General Order Number 23, dated 19 April 1951, which announced the applicant's award of the PH for wounds he received in Unchon-ni, Korea on 13 April 1951;
   
   b.  FEC AGO Form 241 (Casualty Report) completed on 28 June 1951.  It identified the applicant as a "non-battle" casualty.  He sustained a missile, gunshot, penetrating wound to his right lower leg and portions of his buttock during a training exercise on 18 June 1951;
   
   c.  a statement from the applicant's commander certifying the applicant was hit in the right leg and buttocks from a .50 caliber machine gun, fired from a quad 50 halftrack during a training problem due to the nervousness of the gunner;
   
   d.  WD AGO Form 8-118 (Disposition Board Proceedings for Officers), dated 26 August 1954, shows the applicant's right leg amputation resulted from his injuries incurred in enemy combat on 18 June 1951, near Yanghangin, Korea; and
   
   e.  President, Headquarters, Military District of Washington, Army PEB, memorandum, dated 3 September 1954, which confirms under "Medical History and Clinical Record," that the applicant was wounded by friendly machine gun fire during training in the combat zone on 18 June 1951.

4.  On 30 September 1954, the applicant was retired from active duty by reason of permanent disability.  His DD Form 214 shows he completed 4 years and 16 days of creditable active duty service of which 1 year, 3 months, and 27 days was foreign service.

5.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH.  It states that in order to support award of the PH there must be evidence the wound for which the award is being made was received as a result of enemy action, the wound required treatment by medical personnel, and a record of this medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his record should be corrected to show he is entitled to an OLC based on the information he received during his PEB processing for wounds received which resulted in amputation of his right leg.  There is insufficient evidence to support this claim.

2.  The commander's statement verifies the applicant's 18 June 1951 wounds were accidental and occurred during a training problem due to the nervousness of the gunner.  The casualty report also classified his wounds as "non-battle."  While the WD AGO Form 8-118, dated 26 August 1954, prepared during the applicant's PEB processing shows he was wounded due to enemy combat on 
18 June 1951, the president of the PEB, in contradiction, confirms his wounds were a result of an accident.  Therefore, the regulatory burden of proof necessary to support award of a second PH has not been satisfied in this case.

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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The applicant and all others concerned should know that this action related to award of the PH in no way diminishes the sacrifices made by him 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)                                         AR20120022282





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ABCMR Record of Proceedings (cont)                                         AR20120022282



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