IN THE CASE OF: BOARD DATE: 4 January 2019 DOCKET NUMBER: AR20160012994 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :x :x :x DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 4 January 2019 DOCKET NUMBER: AR20160012994 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests, in effect, the award of the Purple Heart for injuries sustained during the Korean War. 2. The applicant states, in March 1952, he incurred a head injury due to a jeep accident at the Demilitarized Zone (DMZ) in Korea. It was nighttime and they were coming down a hill; they were being rocketed by the North Koreans, so they could not use their headlights. a. As they drove, the jeep's brakes stopped working and the driver tried to slide along the side of the mountain as a way to slow down the vehicle. They were going around a hairpin turn that had a considerable drop; the jeep turned over on his head. b. Because he was hospitalized, he never returned to his unit. He feels his commanding officer never knew what really happened and, as a result, could not make a fair assessment with respect to awarding him the Purple Heart. The injuries included skull fractures and a broken right cheek; he had several surgeries and remained in the hospital for 6 months. He still has disfiguring scars on his face, and wakes up with bad dreams and in a cold sweat. COUNSEL'S STATEMENT: Counsel restates the belief the applicant's command did not recommend him for the Purple Heart because they did not really know what occurred. Medical authority evacuated the applicant to a hospital, and eventually back to the United States. Counsel discovered the mistake after a review of the applicant's DD Form 214; block 29 (Wounds Received As a Result with Enemy Action) shows "None" and this statement is not true. His military medical records can corroborate his injuries and there are scars on his face. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with a supporting document: Department of Veterans Affairs Form 21-4138 (Statement in Support of Claim). 2. Evidence from the applicant's service record, and Department of the Army (DA) and Department of Defense (DOD) records and systems: a. The applicant's complete military records are not available for review. A fire in 1973 destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC). The Army personnel records affected dated between November 1912 and January 1960. It is believed his records were lost or destroyed in that fire. b. A reconstructed record was provided by NPRC, which included the following documents: * Listing of names and military serial numbers * Special Orders Number 267, dated 14 November 1952 * U.S. Army SGO (Surgeon General's Office) Hospitalization File Listing, 1950-53 (Korea) * Three documents, titled, "Information from the Hospital Admission Cards Created by the Office of the Surgeon General, Department of the Army (1942-1945) and (1950-1954); Information for the year 1952 * Korean War Casualty File REFERENCES: 1. Title 10, U.S. Code section 1552(b) (Correction of Military Records: Claims Incident Thereto), 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. 2. Army Regulation (AR) 600-8-22 (Military Awards), prescribes policies and procedures for military awards. The Purple Heart is awarded for a wound sustained while in action against an enemy or 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 by medical personnel, and the medical treatment must have been made a matter of official record. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 states 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 (i.e. the weight of the evidence presented is greater than 50-50; by contrast, criminal cases require a higher level of proof that is beyond a reasonable doubt, often interpreted to mean a more than a 95 to 99 percent chance of being correct). DISCUSSION: 1. While 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. At some point prior to March 1952, the applicant was inducted into the Army of the United States. He was assigned to the 196th Field Artillery Battalion in Korea and, on 2 March 1952, incurred a traumatic open skull fracture and ear injury because of a motor vehicle accident (occupant of a jeep that ran off the road). He was hospitalized and received final treatment at Walter Reed Army Hospital. 3. The applicant was released from active duty on 14 November 1952. 4. The Korean War Casualty File does not list the applicant as a casualty. 5. In addition to the requirements that an injury/wound was treated by medical personnel and made a matter of official record, the criteria for an award of the Purple Heart requires substantiating evidence confirming the injury/wound was incurred as a result of hostile action. * Applicant and counsel assert that, because of North Korean rockets, they had to drive with lights off down a hill that had a hairpin turn; brake failure contributed to the vehicle rolling over, seriously injuring the applicant; there is no indication the applicant was under enemy rocket fire at the time * Neither counsel nor the applicant offer documentary evidence, in the form of eyewitness testimony and/or official documents created at or near the event, that affirm the vehicle turnover was the direct result of enemy action. BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005706 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160012994 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2