BOARD DATE:	  16 December 2014

		DOCKET NUMBER:  AR20140006325 


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 in Korea.

	a.  On 24 December 1952, he was away from his usual sector.  As he recalls, intelligence had determined an area between K Company and the unit along its left flank as the most likely point of attack.  The area was not adequately covered by 81mm mortars.  He was to establish concentrations covering the area.  He arrived in the early afternoon.  It was a barren knoll, and he was unable to dig a foxhole due to the rocky, frozen ground.  If need be, he would pull back behind the ridgeline.  After a reconnaissance of the area he selected three points to establish his concentrations.  He radioed in a fire mission, and made his adjustments for concentration Number 1.  He further adjusted to establish concentration Number 2.  He had started on Number 3 when he heard the "whee whee whee" coming across the valley - the unmistakable rounds of a recoilless rifle, with his name on them.  He had to surmise that with the detonation of their rounds, and having little to no cover, he was spotted by an enemy sniper.

	b.  He tried getting to the reverse slope, but he did not make it.  All he recalls is the sensation of being thrown in the air, the explosion, then nothing.  He is not sure how long he may have been out, but it was dark, and it had been light while he was setting the concentrations.  When he came to, he worked his way to a K Company bunker where he was told he could sack out.  When he awoke on Christmas morning, he had trouble standing.  He slid down his pants to find his leg intact, with only a small wound on each knee.  He applied a couple of bandages, had a can of C Rations, coffee, and massaged the leg to loosen it up. He radioed the Fire Direction Center (FDC).  The commanding officer was not around.  He informed them he was heading to his observation post or outpost (OP) unless there were other instructions.  One of their mortar gunners asked why he hadn't finished the last concentration.  He explained what had happened. He asked if he was okay.  He said he thought so, and he went back to his OP.

	c.  Sometime in early January, he was back in the company area.  His leg was sore, but useable.  Their first sergeant questioned his limp.  He explained what had happened, and he sent him to the aid station.  After checking his leg, they took him to a mobile hospital where he spent 3 or 4 days there.  As he recalls, it was tapped a couple of times, and he was told there was muscle loss from his favoring it.  He was released.

3.  The applicant provides a statement from a former unit member. 

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 records show he enlisted in the Wisconsin Army National Guard (WIARNG) on 16 March 1960.  His DD Form 4 (Enlistment Record - Armed Forces of the United States) shows he previously served in the:

* Regular Army (RA) from 24 October 1951 to 23 July 1953; he was honorably discharged and issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), which is not available or provided by the applicant
* RA from 24 July 1953 to 15 March 1954; he was honorably discharged and issued a DD Form 214, which is not available or provided by the applicant
* ARNG, from 16 March 1954 to 15 March 1960; he was honorably discharged and issued a National Guard Bureau Form 22 (Report of Separation and Record of Service), which is not available or provided by the applicant

4.  His DA Form 24 (Service Record) captures his service in the ARNG from     16 March 1954 to 10 August 1962.  It does not contain information pertaining to his service prior to March 1954.  His DA Form 24 also shows: 

* he served with the 1st Battalion, 426th Infantry, WIARNG from March 1954 to February 1959
* he served with the 232nd Transportation Battalion from February 1959 to October 1961
* no service outside continental United State or award of the Purple Heart is listed on this form

5.  He was ordered to active duty on 15 October 1961.  He served with Company C, 232nd Transportation Battalion, 32nd Infantry Division, Sixth U.S. Army.

6.  He was honorably released from active duty on 10 August 1962 and returned to state control as a member of the WIARNG.  His DD Form 214 for this period of service does not show award of the Purple Heart. 

7.  His reconstructed records do not contain orders awarding him 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.

8.  He provides a statement dated 1 August 2014 from an individual who identifies himself as a member of the Gunner Mortar Platoon, Company M, 223rd Infantry Regiment.  He states this letter serves as a testimony of his recollection of the events leading up to and including a talk with [Applicant], Forward Observer, Mike Company, 223rd Infantry Regiment, 40th Infantry Division.  Early one morning he was headed to the Fire Direction Center when someone hollered "Merry Christmas."  He hadn't given the holiday much thought as the days just seemed to blend together.  His concern was whether or not anyone had heard from [Applicant].  When he arrived at the Fire Direction Center someone was on the radio talking with [Applicant].  He said that he needed to talk with him.  He (the author) then asked why he had not finished the third and last concentration he had started.  As he recall, his words were, "Milt, I damn near bought the farm last night.  Bastards tried taking me out with their buffalo gun.  I heard the "whee whee" of the round and tried getting to cover but didn't quite make it.  Last thing I recall was the explosion and being tossed into the air.  Believe I was out for awhile.  Anyway, I'm stiff and sore with two banged up knees but still alive."  He asked him if he was OK and he said he thought so and that he was headed back to his outpost. 

9.  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.  

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant's records during the period in question are not available for review with this case.  An exhaustive search was undertaken to locate his military records which are necessary for the processing of his application.  Unfortunately, they could not be found.  

3.  However, based on the available records and the evidence he provides there is insufficient evidence in his reconstructed records and he did not provide any evidence that shows he was wounded or injured as a result of hostile action, or more importantly, that he was 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 as a result of hostile action and treated for those wounds, regrettably, there is insufficient evidence upon which to base 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)                                         AR20140006325





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ABCMR Record of Proceedings (cont)                                         AR20140006325



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