IN THE CASE OF:	  

		BOARD DATE:	  13 March 2014

		DOCKET NUMBER:  AR20130011748 


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 he was wounded by an incoming round in the winter of 1952 or 1953 in the Chowan Valley in Korea while serving with the 3rd Anti-Aircraft Artillery (AAA) Automatic Weapons (AW) Battalion, 3rd Infantry Division.  He was taken to a first aid station where he was treated for wounds to his head and feet and returned to his unit later that night.  He believes the incident occurred in January or February of 1953; it was extremely cold and there was 5 to 7 feet of snow on the ground.  He never received any documentation of his wound.  He would like for his wound to become part of his record.  He never received the Purple Heart.  Every man or woman who was over in Korea during that period of time and served up on the front line deserves every benefit they get because combat stays with you for life.  As a result of his head and feet injuries, he has suffered from migraine headaches for over 50 years and also suffers from gout, cervical stenosis, and diabetes.

3.  The applicant states that a Soldier named Atkins was also wounded during the same incident, but Atkins was taken to a hospital in the rear.  He later learned that Atkins was hospitalized in Japan and had lost one of his legs.  He never saw Atkins again.

4.  The applicant provides a 3-page self-authored statement.



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 for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.

3.  The applicant' record contains a DD Form 214 (Report of Separation from the Armed Forces of the United States) which shows that he was inducted into the Army of the United States on 20 November 1951.  His most significant duty assignment was to Battery B, AAA AW, 3rd Infantry Division.  He served overseas for a period of 1 year, 1 month, and 10 days.  On 8 October 1953, he was honorably released from active duty after completing 1 year, 10 months, and 17 days of total active service.  At the time of his separation he held the rank/grade of sergeant/E-5.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Standby) for the completion of his Reserve service obligation.  This form also shows in:

	a.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) that he was awarded or authorized the Korean Service Medal with 3 bronze campaign stars and the United Nations Service Medal.

	b.  Item 29 (Wounds Received as a Result of Action with Enemy Forces (Place and Date, if Known)) contains the entry "None."



4.  The applicant continued to serve in a variety of assignments in the USAR and the Army National Guard (ARNG) until he was ultimately retired from the ARNG on 1 March 1989 as a result of attaining sufficient service for the purpose of retirement.

5.  Neither his DA Form 2-1 (Personnel Qualification Record - Part II) nor his NGB Form 22 (Departments of the Army and Air Force, National Guard Bureau, Report of Separation and Record of Service) shows award of the Purple Heart.

6.  The applicant provides a 3-page self-authored statement wherein he states his application for Combat-Related Special Compensation (CRSC) was denied because he cannot prove anything that he tells the CRSC board, so he needs the ABCMR's help with justifying his request.  The Army tells him that his records were burned in the fire that occurred in the NPRC in 1973.  He then provides an account of events that occurred following his arrival in Korea in September 1952.
He provides a brief description of his unit and its mission to provide AW support to several different regiments.  He recalls that one day he and Atkins were walking uphill when there was an explosion from incoming artillery.  Atkins ran down the hill one direction and he ran down the other.  After the firing stopped they met each other while walking back up the hill.  Neither of them realized they had been wounded until they each noticed blood on each other.  The rest of the squad came out of the cave when they heard the explosions.  They called for a helicopter to evacuate Atkins back to a hospital and carried the applicant to an aid station.  They stitched him up and kept him for observation prior to sending him back to his unit.  He attests that the battalion command came up to the front line and spoke with him and Atkins prior to his evacuation.  Later, he learned that Atkins had had his leg amputated in Japan and had rotated home.  He always wondered if Atkins had been awarded the Purple Heart.  The applicant knows that he did not get one himself, but knows that someone has to recommend it for you.  However, no one else witnessed the event because the squad was in a cave when the attack occurred.  He wants to be considered for the Purple Heart, but no one gave him any kind of record showing that he'd been wounded.  He states he was gone for a day and part of a night and ponders if that information would be reflected in Morning Reports or some other form of documentation.  Perhaps there is some other way to verify his service in combat and if there is a way to find out through either unit or pay reports.

7.  There is no evidence in the available record and the applicant has not provided tangible evidence showing he sustained any injuries as a result of hostile action or that he was treated for wounds sustained as a result of hostile action.  
8.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify that 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.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military 
Records (ABCMR).  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show he was awarded the Purple Heart was carefully considered.

2.  There is no evidence of record and the applicant has not provided sufficient evidence showing he sustained any injuries or that he was treated for wounds sustained as a result of hostile action.

3.  Absent evidence that conclusively shows the applicant sustained wounds or injuries as a result of hostile action, that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is an insufficient basis for awarding him the Purple Heart in this case.

4.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  There are several organizations throughout the country that assist veterans in submitting a request for correction of their military records.  It is recommended that the applicant contact his local and/or regional chapter of the Disabled American Veterans (DAV), Veterans of Foreign Wars (VFW), The American Legion, or any veterans services organizations to assist him in searching for the necessary evidence to support his 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 should know that 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)                                         AR20130011748



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ABCMR Record of Proceedings (cont)                                         AR20130011748



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