BOARD DATE: 26 October 2017 DOCKET NUMBER: AR20160002653 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ___x_____ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 26 October 2017 DOCKET NUMBER: AR20160002653 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 to amend the decision of the Army Board for Correction of Military Records set forth in Docket Number AR20140006325 on 16 December 2014. __________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. BOARD DATE: 26 October 2017 DOCKET NUMBER: AR20160002653 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 reconsideration of his previous request for award of the Purple Heart. 2. The applicant states: a. His unit, Company M, 223rd Infantry Regiment, 40th Infantry Division, was on the main line of resistance (MLR) in the Punch Bowl near Mundun-Gni, Korea. Although he was alone and there is no further corroboration, it would be reasonable to conclude his wounds resulted from hostile actions. When he awoke after the explosion, he realized he was able to walk and headed to Company K. Though groggy, he knew enough not to remain around the MLR in the middle of the night. b. It would seem logical to search unit records to verify data not available from other sources, i.e., morning reports, records of the Fire Direction Center (FDC) for the grid coordinate area for which he was establishing concentrations, and perhaps other information. He realizes the Board has a difficult task searching historical data, but he is not responsible for the lack of or lost records. The Army he knew had records for everything and never threw anything away. c. On 24 December 1952, he was away from his usual sector. As he recalls, intelligence had determined an area between Company K and the unit along the left flank as the most likely point of attack. He was to establish concentrations covering the area. He arrived early in the afternoon. It was a barren knoll and he was unable to dig a foxhole due to the rocky, frozen ground. If need be, he could pull back behind the ridgeline. d. After reconnaissance of the area, he selected three points to establish his concentrations. He radioed in a fire mission and made his adjustments for concentration 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 him having little to no cover, he was spotted by an enemy sniper. He attempted to get to the reverse slope, but he did not make it. All he can recall is the sensation of being thrown in the air, the explosion, and then nothing. He is not sure how long he may have been unconscious, but it was darkand it had been light while he was setting the concentrations. When he awoke, he made his way to a Company K bunker where he was told he could sack out. e. When he awoke on Christmas morning, he had trouble standing. He discovered he had a small wound on each knee. He applied some bandages, had a can of C-rations and coffee, and massaged his leg to loosen it up. He radioed the FDC and informed them he was heading out to his observation post (OP) unless there were other instructions. He also told one of their mortar gunners that he was unable to finish the last concentrations due to what had happened the night before. The gunner asked if he was okay and he stated he thought so and went back to his OP. f. Sometime in early January, he returned to the company area. His leg was sore, but usable. His first sergeant questioned his limp. He explained what had happened and he was sent to the aid station. After checking his leg, he was sent to a Mobile Army Surgical Hospital and spent 3 or 4 days there. As he recalls, he was told there was muscle loss from him favoring the use of that leg. He was then released. 3. The applicant provides his Army Board for Correction of Military Records (ABCMR) denial notification letter. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR201400006325 on 16 December 2014. 2. The applicant provides new argument that warrants consideration by the Board. 3. His available record contains: a. Special Orders Number 170, issued by Headquarters, Camp Carson Separation Center on 21 July 1953, releasing him from active duty on 23 July 1953 and transferring him to the Enlisted Reserve Corps (ERC). b. A DD Form 4 (Enlistment Record – Armed Forces of the United States) showing he served in the: * Army of the United States from 24 October 1951 until his honorable separation on 23 July 1953 (separation document not available) * Enlisted Reserve Corps from 24 July 1953 to 15 March 1954 * Army National Guard (ARNG) from 16 March 1954 until his honorable separation on 15 March 1960 (separation document not available) * he reenlisted in the WIARNG on 16 March 1960 c. A DD Form 220 (Active Duty Report), dated 15 October 1961, stating he was ordered to active duty on that date. d. A DA Form 24 (Service Record) covering his service in the ARNG from 16 March 1954 to 15 March 1963. This form does not contain any information pertaining to his service prior to 16 March 1954 and does not provide any evidence to show he served in Korea or that he was authorized or awarded the Purple Heart. 4. He was honorably released from active duty on 10 August 1962 and he was transferred to the control of the ARNG. He was credited with completing 9 months and 26 days of active service. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) lists in: * Item 24 (Foreign and/or Sea Service) – Zero credit * Item 25a (Specialty Number and Title) – 643.70 (Truckmaster) * Item 25 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbon Awarded or Authorized) – None 5. During the processing of this case, a member of the Board's staff reviewed the Department of the Army Korean casualty roster. The applicant's name is not included on this roster. REFERENCES: 1. Army Regulation (AR) 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 award. c. Examples of enemy-related injuries which clearly justify award of the Purple Heart are an injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; an enemy placed mine or trap; enemy released chemical, biological, or nuclear agent; caused by vehicle or aircraft accident resulting from enemy fire; and concussion injuries caused as a result of enemy generated explosions. d. Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury, or death must have been the result of enemy action, the wound or injury must have required treatment, not merely examination, by a medical officer. Additionally, treatment of the wound will be documented in the service member's medical and/or health record. 2. AR 15-185 (ABCMR) provides that the ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. The presumption of administrative regularity in the conduct of governmental affairs can be applied to any review unless there is substantial creditable evidence to rebut the presumption. In this instance, the "presumption of regularity" is based on AR 15-185 that states the ABCMR begins its consideration of each case with the presumption of administrative regularity and that the applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. Other than the applicant's own statement, there is no available evidence showing he sustained a wound/injury as a result of enemy action. 2. 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 for which the award is being made was received as a direct result of, or was caused by enemy action and that the wound required treatment by medical personnel. This treatment must have been made a matter of official record. 3. The ABCMR is not an investigative agency. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases on the evidence of record. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002653 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002653 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2