IN THE CASE OF:	  

		BOARD DATE:	  7 May 2013

		DOCKET NUMBER:  AR20130008167 


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, the widow of a deceased former service member (FSM), requests the FSM be awarded the Purple Heart.  

2.  She states the Purple Heart should be issued based on the fact that the FSM was injured in the line of duty during the Korean War.  He sustained gunshot wounds through both of his legs as a result of friendly fire in combat.  The wounds he received ultimately resulted in his discharge from the Army for disability.  At the time of the incident on 4 January 1951, the initial assessment was that the FSM's wounds were "Line of Duty - Undetermined."  However, the transcript of the Physical Evaluation Board (PEB) held on 13 March 1952 shows the record was corrected to show "Line of Duty - Yes" based on a report dated 12 March 1951.  She believes that, due to delay, the results did not reach the original command and the Purple Heart the FSM was entitled to was never issued. 

3.  She states her husband battled his entire life to receive the benefits and recognition he was entitled to as part of his military service.  It was not until his passing that they reviewed his records closely enough to understand that he was entitled to the Purple Heart and internment in Arlington National Cemetery.

4.  She asks that the Board take into account the fact that there is a limited amount of time to resolve this issue.  The FSM died on 29 January 2013, and he is being held in storage until this issue is resolved.  He believed he was entitled to in-ground burial at Arlington National Cemetery based on his medical records, and it was his desire to be buried there.  She was surprised to find that the Purple Heart was required.  They have filed an appeal with the Executive Director, Arlington National Cemetery, based on errors in the FSM's record, but they would like to have the FSM's records corrected to show he was entitled to the Purple Heart.  

5.  She provides:

* self-authored letter to the U.S. Army Human Resources Command
* Certificate of Marriage
* Delayed Certificate of Birth
* Notification of Birth Registration
* self-authored letter to her Member of Congress and related documents

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.  On 24 May 1950, the FSM enlisted in the Regular Army for a period of 3 years.  

3.  After completing initial entry training, he was assigned to duty in Korea.  On 4 October 1950, he arrived in Korea, where he was assigned to Company D, 24th Infantry Regiment, with duty as a rifleman.  

4.  A WD MD Form 55A (Clinical Record Brief) shows he was admitted to Tokyo (Japan) Army Hospital on 8 January 1951.  He was admitted for treatment of a gunshot wound (GSW) of the left knee and right lower leg and a left tibia fracture secondary to the GSW.  The form shows he was wounded "when buddy was cleaning rifle and accidentally discharged same about 1430 hours, 4 January 1951, Seoul, Korea."

5.  All other documents in his record that describe the circumstances under which he was wounded confirm the account recorded on the WD MD Form 55A.
6.  On 17 January 1951, he returned to the United States to continue medical treatment.  His record shows he was assigned to Walter Reed Army Hospital (WRAH), Washington, DC, from 1 February through 21 September 1951.  

7.  A memorandum, dated 12 March 1951, from General Headquarters, Far East Command, to The Adjutant General shows the line of duty determination regarding the FSM's wounds was changed from "[Line of Duty] - Undetermined" to "Yes."  

8.  During the period 22 September 1951 to 11 March 1952, he was assigned to units at Fort Meade, MD; Fort Knox, KY; and Fort Eustis, VA.

9.  On 12 March 1952, he was assigned to the Medical Holding Detachment, WRAH.  

10.  On 24 March 1952, a PEB convened to consider his fitness for continued service.  The PEB found him unfit based on two diagnoses incurred in the line of duty:

* residuals of contusion, common peroneal nerve, right, resulting from GSW sustained in Korea when shot by a fellow Soldier on 4 January 1951
* conversion reaction, chronic

11.  On 14 April 1952, the PEB findings and decision were approved by order of the Secretary of the Army, and on 18 April 1952, he was honorably discharged for disability with severance pay.  

12.  His record is void of documentation showing he was awarded the Purple Heart.  

13.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded to any member who, while serving under competent authority in any capacity with one of the Army Services, has been wounded or killed or who has died or may hereafter die after being wounded:

	a.  in any action against an enemy of the United States;
      
	b.  in any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged;

	c.  while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party;

	d.  as a result of an act of any such enemy of opposing armed forces;

	e.  as a result of an act of any hostile foreign force;

	f.  after 23 March 1973, as a result of an international terrorist attack against the United States or a foreign nation friendly to the United States, recognized as such an attack by the Secretary of the Army, or jointly by the Secretaries of the separate armed services concerned if persons from more than one service are wounded in the attack;

	g.  after 28 March 1973, as a result of military operations while serving outside the territory of the United States as part of a peacekeeping force; or

	h.  as a result of friendly fire.
      
14.  Included as part of the Department of Defense Appropriations Act for fiscal year 1994 was an amendment to the rules governing award of the Purple Heart.  While the original rules established that the Purple Heart would be awarded to individuals killed or wounded as a result of hostile action, the amendment enabled the service Secretaries to award the Purple Heart to members of the armed forces who were killed or wounded in action by weapons fire, while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States.  This amendment granted the service Secretaries the authority to award the Purple Heart to individuals directly engaged in armed conflict who were killed or wounded as a result of "friendly fire."

15.  Army Regulation 600-8-22 provides for award of the Purple Heart to individuals wounded or killed as a result of friendly fire in the “heat of battle” as long as the “friendly” projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.  

16.  Army Regulation 600-8-22 states award of the Purple Heart is not justified for accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM was wounded when a fellow Soldier was cleaning his rifle and it accidentally discharged.  The record does not show the FSM was directly engaged in armed conflict at the time of the accident, nor does it show the incident that caused his injury was anything other than an accident.  

2.  A determination that an injury was incurred in the line of duty is an insufficient basis upon which to award the Purple Heart.  There must also be evidence showing the wound was the result of hostile action or the result of friendly fire directed at the enemy in the heat of battle.  

3.  In this case, there is no evidence showing the FSM was wounded in the heat of battle by a friendly projectile released with the intent of inflicting damage on enemy troops or equipment, and there is no evidence showing he is eligible for the Purple Heart under any other criteria for the award.  Therefore, there is no basis for awarding the Purple Heart to him.

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.  In making this determination, the applicant and all others concerned should know this action in no way diminishes the sacrifices the FSM made in service to our Nation.  



      _______ _ 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)                                         AR20130008167





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ABCMR Record of Proceedings (cont)                                         AR20130008167



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