IN THE CASE OF:  	  

		BOARD DATE:  20 November 2014	  

		DOCKET NUMBER:  AR20140006333 


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, in effect, he should be awarded the Purple Heart for injuries suffered in combat on 6 July 1953 in South Korea.  He injured his back during combat and he was unable to receive immediate medical care because he was in a remote area.  After he was discharged he filed for service-connected disability due to his injury.  Although initially denied, the denial was overturned by the Veterans Board of Appeals (VBA) based primarily on lay statements made by his fellow service members.  He was awarded service-connected disability for this injury effective 26 May 1989.  He could not prove his injury was service-connected until the VBA reversed the original denial.  

3.  The applicant provides copies of two letters from former service members.

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant's complete military records are not available to the Board for review.  A fire destroyed approximately 16 million service members’ records at the National Personnel Records Center in 1973.  It is believed his records were destroyed in that fire.  However, his available DD Form 214 contains sufficient information for the Board to conduct a fair and impartial review of this case.

3.  He was inducted into the Army of the United States on 6 June 1952.  He was awarded military occupational specialty 1795 (tank platoon sergeant).

4.  He was honorably released from active duty on 16 March 1954 and he was transferred to the U.S. Army Reserve.  He was credited with completing 1 year, 9 months, and 3 days of net active service and 1 year, 3 months, and 3 days of foreign service.  His DD Form 214 lists in:

* Item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) – the:

* Korean Service Medal with 2 bronze service stars
* Combat Infantryman Badge
* United Nations Service Medal
* National Defense Service Medal

* Item 28 (Most Significant Duty Assignment) Tank Company, 14th Infantry Regiment
* Item 29 (Wounds Received as a Result of action with Enemy Force) the entry "None"

5.  There are no available orders authoring or awarding him a Purple Heart during his period of service in Korea.

6.  The Korean War Casualty Roster does not list his name.

7.  He also provided copies of the following:

   a.  A letter, notarized on 23 April 1991, wherein the former commanding officer of Tank Company, 14th Infantry Regiment, 25th Infantry Division, stated to the best of his recollection it was reported to him that the applicant, while serving under his command as a tank commander, fell from his tank and injured his back while supervising his crew during action against the enemy in Korea on or about 6 July 1953.  The applicant was located in an isolated defensive position along the main line of resistance with no medical assistance readily available.  Even under the urging of his platoon leader, the applicant valiantly refused evacuation to a field hospital.  He remained with his crew and fulfilled his mission under very difficult circumstances.  It was his sincere belief, and also from personal experiences, that such an injury as a fall from the rear deck of a 40-ton tank could cause permanent back problems culminating in permanent pain and discomfort.

   b.  A letter, dated 29 May 1991, wherein the former platoon sergeant of Tank Company, 1st Platoon, 14th Infantry Regiment, 25th Infantry Division, stated that on or about 6 July 1953 it was reported that the applicant had fallen from his tank while in action against the enemy and he had injured his back.  However, the applicant insisted on remaining with his platoon.  He had known the applicant as a Soldier for some time and found him to be outstanding in his job as a tank commander.  He sincerely believed the applicant's back injuries were a result of that fall.  He believed the applicant to be sincere and honest in all of the reports he had made concerning his injuries.

8.  Army Regulation 600-8-22 (Military Award) states:

   a.  The Purple Heart is awarded for a wound sustained as a result of enemy 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.

   b.  When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for the award.  

   c.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:

		(1)  Injury caused by enemy bullet, shrapnel, or other projectile created by enemy action.

		(2)  Injury caused by enemy placed mine or trap.

		(3)  Injury caused by enemy released chemical, biological, or nuclear agent.

		(4)  Injury caused by vehicle or aircraft accident resulting from enemy fire.

		(5)  Concussion injuries caused as a result of enemy generated explosions.

   d.  It is not intended that such a strict interpretation of the requirement for the wound or injury to be caused by direct result of hostile action be taken that it would preclude the award being made to deserving personnel.  Commanders must also take into consideration the circumstances surrounding an injury, even if it appears to meet the criteria.  Note the following examples:

		(1)  In a case such as an individual injured while making a parachute landing from an aircraft that had been brought down by enemy fire; or

		(2)  An individual injured as a result of a vehicle accident caused by enemy fire, the decision will be made in favor of the individual and the award will be made.

DISCUSSION AND CONCLUSIONS:

1.  By regulation, to be awarded the Purple Heart it is necessary to establish that a Soldier was wounded or injured in action.  There must be evidence confirming the wound or injury for which the award is being made was received as a direct result of, or was caused by enemy action, that the wound was treated by medical personnel, and a record of this treatment must have been made a matter of official record.

2.  There is no evidence available and he did not provide sufficient evidence showing the injuries he sustained in Korea were a direct result of enemy action for award of the Purple Heart.  His DD Form 214 does not show he was wounded in action and his name is not listed in the Korean Casualty List. 

3.  Notwithstanding his contentions and his sincerity, there is insufficient evidence upon which to base award of the Purple Heart.  Therefore, he is not entitled to award of the Purple Heart and addition of this award to his DD Form 214.

4.  In making this determination, the applicant and all others concerned should know that this Nation in no way diminishes the sacrifices made by his service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.


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)                                         AR20140006333



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ABCMR Record of Proceedings (cont)                                         AR20140006333



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