PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           26 June 2003                  
	DOCKET NUMBER:   AR2002080250

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Lawrence Foster		Member	

	The applicant and counsel, if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records:

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his undesirable discharge be upgraded to honorable and to receive the two Purple Hearts, to which he is entitled.

3.  The applicant states, in effect, that he was only 17 years old when he enlisted and that he was wounded twice but did not receive the Purple Heart.  He states that the fact of his age and immaturity combined with his twice being wounded led him to go AWOL (absent without leave), which led to his discharge.

4.  The applicant's military records were partially lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from reconstructed personnel records and his service medical records.

5.  The applicant’s military records show that he entered active duty on 29 June 1950, at age 17 years, 1 month and 2 days.  He completed basic combat training and advanced individual training and was assigned to Company A, 5th Regimental Combat Team in Korea.

6.  The applicant’s medical records show that he injured his left knee on 21 December 1950.  The applicant was hospitalized until 9 February 1951 for treatment.  The medical records and an associated 17 March 1951 line of duty "Certificate" report the injury occurred during a road march when the applicant slipped on ice.  The only reference to a machine gun position occurs in the 10 February 1951 discharge record, which reads, in part, "Pt. Slipped on ice getting to machine gun position." 

7.  On 12 July 1951, the applicant received multiple fragment wounds to his right leg from a hand grenade that was "poorly thrown" by another soldier.  

8.  The WDAGO Form Number 8-26, completed at the 2nd Battalion Aid Station, states, “AI (accidental injury) wound missile 8255 S. F. rt (right) leg with possible proximal nerve injury.  Resulted from exploding grenade thrown poorly by another man.”  It reports that injury occurred “0100 12 July 51 San Yang-ni (sp?), Korea.”  The applicant was “evac(uated) 8076 MASH at 1300 hrs. 12 July ‘51”.

9.  On 4 June 1953, the applicant was afforded a neuropsychiatric evaluation.  The psychiatrist offered a diagnosis of a chronic, severe antisocial personality, manifested by excessive drinking and repeated periods of AWOL.  He found the applicant to be mentally responsible and able to both distinguish right from wrong and adhere to the right.  The doctor recommended that the applicant be separated under Army Regulation 615-368 due to unfitness.

10.  On 23 July 1953, the applicant was directed to appear before a board of officers that was convened to determine if he should be retained in the Army.  He was informed of his rights and elected to proceed with counsel and without delay. The record of board proceedings does not reflect that he was represented by counsel.

11.  The 23 July 1953 Report of Proceedings of Board of Officers (DA Form 37) shows that the applicant had received a summary court-martial and three special courts-martial for being absent without leave (AWOL).  His periods of AWOL were listed as 1 August to 6 August 1950, 19 March to 16 April 1952, 3 May to 22 May 1952, 22 July to 4 September 1952, 15 November 1952 to 10 January 1953 and 8 June to 26 June 1953.

12.  The board of officers recommended that the applicant be discharged for unfitness and the discharge authority accepted this decision.  There is no other documentation of the discharge processing except the DA Form 37.

13.  The applicant’s DD Form 214 (Report of Separation) shows that the applicant received an undesirable discharge in accordance with Army Regulation 615-368 for unfitness.  He had 1 year, 6 months, and 17 days of creditable service and 562 days lost due to AWOL or incarceration.  His awards are listed as the Korean Service Medal with 3 bronze service stars, the Combat Infantryman Badge, the United Nations Service Medal and 2 overseas bars.  

14.  A review of the unit history for Company A, 5th Infantry Regiment failed to show the applicant’s name as having been wounded in action or being awarded the Purple Heart.  It was noted that the records are silent for either of the injuries reported in his medical records.
 
15.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained 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, and the medical treatment must have been made a matter of official record.  

16.  Army Regulation 600-8-22, paragraph 2-9b(6)(b) 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. 

17.  The above paragraph was included as part of the Department of Defense Appropriations Act for fiscal year 1994, which amended 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 Secretaries of each department to award the Purple Heart to members of the armed forces who were killed or wounded in action by weapon fire, while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States.  This ruling, in effect, 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.”

18.  Army Regulation 600-8-22, paragraph 2-10 (Military Awards) provides that the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 and 27 July 1954.

19.  Army Regulation 615-368, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included, in addition to misconduct and repeated petty offenses, habits and traits of character manifested by antisocial or amoral trends, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, habitual shirking, and repeated venereal infections.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was unsuccessful, impractical or was unlikely to produce a satisfactory soldier.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

20.  As a matter of information, on the occasion of the 50th anniversary of the Korean War, the Government of the Republic of Korea issued the Korean War Service Medal to pay tribute to eligible Korean War veterans for their heroic endeavors to preserve the freedom of the Republic of Korea and the free world. On 20 August 1999, the Department of Defense approved acceptance and wear of this foreign award to eligible US veterans of the Korean War, or their surviving next of kin.  The medal is provided at no cost to veterans.  The Department of Defense assigned responsibility to the Department of the Air Force for distribution of the Korean War Service Medal to eligible veterans or their surviving next of kin.  To apply, veterans must submit a copy of their discharge paper (DD Form 214) to the Awards and Decorations Section, Headquarters, Air Force Personnel Center, 550 C Street West, Suite 12, Randolph Air Force Base, Texas 78150-4714.  A sample request form is provided.  Once the Department of the Air Force has authorized the Korean War Service Medal, the applicant may apply to the Army Board For Correction of Military Records to have it added to his DD Form 214.

CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with his overall record.

2.  Available documents do not indicate any enemy action involved with the applicant’s knee injury.  Had this been a combat injury a line of duty determine would not have been necessary.  Absent evidence showing that the LOD was in error, award of the Purple Heart is not warranted.

3.  The regulations awarding the Purple Heart for wounds caused by friendly fire did not exist at the time the applicant received his wounds due to the poorly thrown grenade.  However, the award of the Purple Heart for wounds due to friendly fire was made retroactive. 

4.  The Board notes that the second injury occurred at 0100 hours on 12 July 1951.  The Board concludes that had the "poorly thrown" grenade incident not involved a tactical situation, such as during a training evolution, the normal course of events would have resulted in a formal line of duty determination such as occurred in the slip and fall accident.  Therefore, the Board concludes that the available evidence supports a finding that the applicant’s wounds, from an improperly thrown grenade, were incurred as a result of “friendly fire” in the “heat of battle”.  

5.  The evidence of record shows that the applicant is entitled to award of the National Defense Service Medal.

6.  The applicant may apply for the Korean War Service Medal in accordance with the information in paragraph 20, above.

7.  In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below will correct an error.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:  

a.  showing that the individual concerned is awarded the Purple Heart for wounds received on 12 July 1951; and,

b.  showing that the applicant is awarded the National Defense Service Medal.

2.  That so much of the application as is in excess of the foregoing be denied. 

BOARD VOTE:  

__WTM__  __LE____  __LF____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_  _Walter T. Morrison__
		        CHAIRPERSON

INDEX

CASE ID	AR2002080250	
SUFFIX		
RECON		
DATE BOARDED	20030626	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.	upgrade	
2.	Purple Heart	
3.		
4.		
5.		
6.