IN THE CASE OF:  	  

		BOARD DATE:  11 December 2014	  

		DOCKET NUMBER:  AR20140007127 


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 correction of his records to show award of the Purple Heart.

2.  The applicant states he served in the Army during the Korean War and was assigned to the 42nd Truck Company, 55th Truck Battalion.  He was wounded on 30 May 1952 when he was in the vicinity of the front lines.

   a.  He first pursued this matter in September 2000 and was informed that his medical records pertaining to the incident did not exist.  He has since obtained military records that support his claim.

   b.  He states he was moving ammunition and troops near the front lines.  While stopped and under fire, he was sliding ammunition in the back of the truck to two Republic of Korea (ROK) soldiers who were on the ground.  The ROK soldiers were struck and killed.  He was lucky only to get struck in the legs.  He was taken to triage and stabilized, medically evacuated to Pusan, and then transported to a hospital in Japan where he spent two or three months receiving hospital care.  He was told he would receive the Purple Heart.  He returned to his unit in August 1952; however, he never received the award.

   c.  He adds the documents he now provides refute previous findings that his injuries were the result of an accidental explosion in the demolition or ammunition area.

3.  The applicant provides copies of seven medical records.
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 service 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 the applicant's records were lost or destroyed in that fire.  However, available reconstructed records offer sufficient evidence for the Board to conduct a fair and impartial review of this case.

3.  The applicant's DD Form 214 (Report of Separation from the Armed Forces of the United States) shows he enlisted in the Regular Army on 3 October 1950 and he was honorably discharged on 20 November 1953.  It also shows in:

	a.  item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) the -

* Korean Service Medal with 3 Bronze Service Stars
* National Defense Service Medal
* United Nations Service Medal
* Meritorious Unit Commendation

	b.  item 28 (Most Significant Duty Assignment):  42nd Truck Company, 
55th Truck Battalion; and

	c.  item 29 (Wounds Received as a Result of Action with Enemy Forces): "None."

4.  There are no orders or other evidence in the applicant's available military service records that shows he was awarded the Purple Heart.
5.  Two Admission and Disposition Reports for Overseas Hospitals completed by officials of the 121st Evacuation Hospital and pertaining to the applicant show, in pertinent part –

* on 30 May 1952, he was admitted and treated for injuries (second degree burns) categorized as "BI" (Battle Injury)
* on 31 May 1952, he was transferred to another hospital with injuries categorized as "NBI" (Non-Battle Injury)

6.  A review of the Korean Casualty File failed to reveal the applicant's name.

7.  In support of his request the applicant provides copies of the following documents:

   a.  121st Evacuation Hospital (Surgical Mobile) Surgical Service, medical record, dated 30 May 1952, that shows for Admission Diagnosis the entry, "NBC" (Non-Battle Casualty).  It also shows, "On 30 May 52, at 0030 while driving an ammo truck he was struck by white phosphorus shell and sustained second degree burns of left hand, both thighs and right leg.  Examination on entrance also showed small wound laceration of lower one-third right leg.  X-ray revealed no radio-opaque retained fragment."

   b.  Standard Form (SF) 538 (Clinical Record – Abbreviated Chronology) that describes the applicant's injuries (as above) and shows, in pertinent part, "AI" (Accidentally Incurred) 30 May 52 when white phosphorous shell exploded 
0100 hours in ammo area."  It also shows he was treated at the 125th Evacuation Hospital on 30 May 1952, evacuated that same date, arrived at the 
25th Evacuation Hospital on 1 June 1952, and evacuated on 2 June 1952.

   c.  War Department Medical Form 55A (Clinical Record Brief) that shows he was admitted to the 343rd General Hospital at 1730 hours, 2 June 1952.  The record describes the applicant's injuries (as above) and shows in item 11 (Final Diagnosis, Additional Diagnoses, Operations, Change of Status), in pertinent part, "AI 0100 hours, 30 May 52 near vicinity unknown, North Korean round went off in demolition area."

   d.  SF 502 (Clinical Record – Narrative Summary) that shows he was admitted to the 343rd General Hospital on 2 June 1952 and discharged on 
10 July 1952 for transfer to the 25th Evacuation Hospital.  The record describes the applicant's injuries (as above) and shows, in pertinent part, in the "PI" (Patient Information) section, "He injured himself in an accidental explosion of a white phosphorus round in the demolition area in North Korea at 0100 hours,
30 May 1952."
	e.  U.S. Army Hospital, 8079th Army Unit, Abbreviated Clinical Record, that shows he was admitted on 16 July 1952.  The record describes the applicant's injuries (as above) and shows, in pertinent part, "AI on 30 May 1952."

   f.  SF 55A that shows he was admitted to the U.S. Army Hospital, 
8079th Army Unit, on 16 July 1952.  The record describes the applicant's injuries (as above) and shows, in pertinent part, in block f (Injury) the entry, "NBI."  It also shows, "AI, 0100 hours, 30 May 1952, vicinity unknown, North Korea, when round exploded in demolition area."

   g.  Army medical record, dated 5 August 1952, pertaining to the physical condition of the applicant that shows he was considered fit and returned to duty.

8.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.

	a.  The Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.

	 	(1)  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.

    	(2)  The regulation provides examples of injuries or wounds which clearly do not justify award of the Purple Heart and lists, in pertinent part, "Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action."

	b.  The Republic of Korea War Service Medal is awarded to members of the U.S. Armed Forces who served in Korea and adjacent waters between 25 June 1950 and 27 July 1953.  The service must have been performed, in part, while on permanent assignment or on temporary duty for 30 consecutive or 60 non-consecutive days within the territorial limits of Korea or the waters immediately adjacent thereto.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was wounded in action and awarded the Purple Heart.


2.  The applicant's claim to the Purple Heart was carefully considered.

   a.  The evidence of record shows the applicant was injured on 30 May 1952 when a white phosphorus shell exploded and he sustained second degree burns of the left hand, both thighs, and right leg.

   b.  Upon admission to the 121st Evacuation Hospital on 30 May 1952, his injuries were categorized by medical officials as NBC (non-battle casualty).  The Admission and Disposition Report for that date shows his injuries were listed as BI (battle related).  However, he was discharged the following day, on 31 May 1952, and the Admission and Disposition Report accurately reported that his injuries were categorized by medical officials as non-battle related (NBI).  Thus, it is concluded that the 30 May 1952 Admissions and Disposition Report is in error.

   c.  On 1 June 1952, the applicant was transferred to 25th Evacuation Hospital and it was determined his injuries were accidentally incurred at approximately 0100 hours, 30 May 1952, when a white phosphorous shell accidentally exploded in an ammunition/demolition area.

   d.  At some point during the period 2 June to 10 July 1952, while being treated at the 343rd General Hospital, the evidence of record shows the applicant indicated to medical officials that he "injured himself in an accidental explosion of a white phosphorus round in the demolition area in North Korea at 0100 hours,
30 May 1952."

   e.  The evidence of record shows the true nature of the injuries that the applicant sustained was initially categorized by medical officials as non-battle related.  Moreover, the overwhelming evidence of record shows the injuries were consistently reported as NBI and that they were accidentally incurred.

   f.  The regulatory guidance is clear in that injuries, to include explosive or other accidental wounding not related to or caused by enemy action, do not qualify for or justify award of the Purple Heart.

3.  The sincerity of the applicant's comments is not in dispute.  However, in order to qualify for award of the Purple Heart there must be evidence that the individual was wounded or injured while in action in the face of the armed enemy or as a result of a hostile act of such enemy.

   a.  His available military service records do not show that he was wounded or injured in action as a result of a hostile act of the enemy.
   
   b.  The applicant's name is not listed on the Korean Casualty Roster.
   c.  There are no orders or any other evidence that shows he was awarded the Purple Heart.

   d.  Thus, the evidence of record does not support the applicant's claim.

4.  Therefore, in view of the foregoing, there is an insufficient evidentiary basis to grant the applicant's request.

5.  Evidence shows that the applicant's records contain an administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant's records will be accomplished by the Army Review Boards Agency (ARBA) Case Management Division (CMD) as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

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 Board determined that an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the ARBA CMD administratively correct the records of the individual concerned to show the Republic of Korea War Service Medal in item 27 of his DD Form 214.


3.  The Board wants the applicant and all others to know the sacrifices he made in service to the United States during the Korean War are deeply appreciated.  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)                                         AR20140007127



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140007127



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1