ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 14 July 2020 DOCKET NUMBER: AR20190003551 APPLICANT REQUESTS: The applicant defers to counsel. COUNSEL REQUESTS: a. reconsideration of the applicant's earlier request for award of the Purple Heart and b. correction of the applicant's DD Form 214 (Report of Separation from the Armed Forces of the United States) to show his wounds received in combat, and c. a copy of ABCMR Docket Number AR20080017966, dated 5 March 2009, and this decision be declared null and void. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 19 July 2013 * two Self-authored letters * six Counsel letters * article, "Word Received from Convalescing Veteran" from the News-Messenger Newspaper, Fremont, OH, dated May 1951, with transcription * DD Form 214 * Standard Form 180 (Request Pertaining to Military Records), dated 5 July 2001 * four National Personnel Records Center letters * Birchard Public Library Research/Local History Request Form, dated 27 March 2008 * Birchard Public Library of Sandusky County letter, dated 6 May 2008 * Congressional Correspondence * Daughter's Statement, dated 3 April 2014 * Army Board for Correction of Military Records (ABCMR) Docket Number AR20140012519 letter, dated 3 March 2015 * Purple Heart Information Sheet, undated ? FACTS: 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 AR20080017966 on 5 March 2009. 2. The applicant's complete military records are not available 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, there was sufficient documents remaining in the applicant's reconstructed records for the Board to conduct a fair and impartial review of the case. 3. Counsel provided new arguments not previously considered that warrants consideration by the Board at this time. 4. The applicant states: a. He is now 86 years old and his attorney has been assisting him in obtaining his records and application for consideration for award of the Purple Heart since 2008. He contacted his member of Congress years ago and apparently this individual submitted a request for Board action; however, he does not remember giving anyone any authority to submit such an application as his counsel was the person who had his authority. b. His counsel submitted his application in July 2014 and advised him the ABCMR rejected the application because action had been previously taken on the request. c. He desires a copy of ABCMR Docket Number AR20080017966, dated 5 March 2009, be provided to his counsel and decision be declared null and void because the request was not submitted by his counsel, who has extensive experience on such matters. d. The delay in his request has been due to his health. e. When the Korean War began in June 1950, he was still in Japan but his unit deployed for the Inchon landing in September 1950. f. He should be awarded the Purple Heart for the wounds he received while serving in a combat zone in Korea in November 1950. g. He was shot in the right upper chest while stooping down to go back into his dug out to relieve his partner. He does not know who shot him or how it occurred. He was badly wounded and medics came, put him on a stretcher, and took him to a medic tent which was six or seven miles away. He was in and out of consciousness while in the tent and he did not regain consciousness until he was on a plane to Japan.? h. He was hospitalized in Japan, where he had surgery to remove the bullet, and he remained hospitalized for several months before he was shipped back to Korea. i. When he returned to Korea, he was told his unit was shot up by enemy mortars, and that he would be sent back to the United States for separation. Because his unit was basically not in existence any more, no one gave any thought to submit him for award of the Purple Heart. j. He was never awarded the Purple Heart although his discharge papers show he was awarded, in part, the Combat Infantryman Badge, Korea Service Medal, and six bronze stars for his combat landings. k. His DD Form 214 should be corrected to show the wounds he received as a result of action with enemy forces. He was wounded while engaging Chinese and North Korean soldiers near the Yalu River in November 1950 during the Korean War. 5. Counsel states, in part: a. An attempt to obtain the applicant's medical records from the National Personnel Records Center in St. Louis, MO, was unsuccessful due to the 1973 fire at the Center. In 2002, he requested copies of the applicant's Department of Veterans Affairs records but he did not receive a response. b. In February 2008 and after reading an article in the Air Force Times that the National Personnel Records Center was making progress in restoring some of the previously damaged military records, he sent another letter to the Center as a further attempt to locate the applicant's records. On 1 May 2008, he received a request from the Center for further information. He provided the requested information on 12 June 2008 but he never received any information from the Center or any other agency. c. A newspaper article from a relative's local newspaper in Ohio from 1951 provides some information regarding the applicant's hospitalization in Tokyo Army Hospital for recovery from a bullet wound to his chest. There is some conflicting information in the article as to how and when the wound occurred. According to the article, the applicant was accidentally hit in the chest by a bullet when an Army buddy picked up a .38 caliber revolver intending to clean it but not knowing it had a round of ammunition in it. It is unknown where this information came from because the applicant only remembers he was shot while coming back from getting his hot meal at Thanksgiving time while he and his unit were in the combat zone. A search of library microfilm was unable to produce any results. d. There is ample proof the applicant suffered a wound to his body during his assignment in Korea in late November 1950. Whether the applicant's wound occurred while he was under attack or accidentally by "friendly fire," it is their understanding that either way, the applicant is eligible for award of the Purple Heart. ? e. He nor the applicant knew anything about ABCMR Docket Number AR20080017966 which was considered on 5 March 2009. He and the applicant suspect the applicant was submitted by a North Carolina member of Congress or staff member. Without the applicant's authorization to act on his behalf, the previously submitted application is automatically not only inappropriate but definitely "null and void" and the ABCMR should declare it to be so and consider the true application submitted on 9 July 2014. f. The unnecessary delay and the applicant's age are compelling reasons for the ABCMR to act immediately on the original application. 6. On 30 December 1948, the applicant enlisted in the Regular Army. 7. On 31 May 1952, the applicant was honorably released from active duty. He completed 3 years, 5 months, and 2 days of net service. His DD Form 214 shows in: a. item 26 (Foreign Service) – 2 years, 6 months, and 21 days, b. item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) – * Combat Infantryman Badge * Korean Service Medal with one silver service star and one bronze service star * United Nations Service Medal * Army of Occupation Medal (Japan) c. item 29 (Wounds Received as a Result of Action with Enemy Forces) – "None." 8. Counsel provided copies of the following: a. an article, "Word Received from Convalescing Veteran" from the News- Messenger Newspaper, Fremont, OH, dated May 1951, with transcription, that shows, in part, the applicant reached Tokyo hospital on 3 May 1951 after he was hit by a bullet from a .38 caliber revolver when his buddy picked up the .38 revolver, intending to clean the weapon and not knowing it still had ammunition in it. The applicant was shot in the chest and the incident occurred in Korea. b. a Standard Form 180, dated 5 July 2001, wherein he requested copies of the applicant's military personnel and medical records. c. a letter from the National Personnel Records Center, dated 1 August 2002, which advised Counsel the applicant's records had been destroyed by the 1973 fire and the possibility of medical records being obtained from the Department of Veterans Affairs. d. a self-authored letter, dated 6 September 2002, in which he requested copies of the applicant's medical records. e. a self-authored letter, dated 1 February 2008, to the National Personnel Records Center in which he requested the applicant's records based on an Air Force Times article about the progress the Center was making on restoring previously fire-damaged records. f. a self-authored request, dated 27 March 2008, to the Birchard Public Library, in which he requested a search of the Fremont News-Messenger for information pertaining to the applicant. g. a letter from the National Personnel Records Center, dated 1 May 2008, advising him the requested records pertaining to the applicant were not available due to the 1973 fire. However, a copy of the applicant's separation document, obtained from an alternative source was provided. Counsel was advised to provide the applicant's date of arrival overseas, date of departure from overseas, complete organization assigned at the time of arrival overseas and the complete organization assigned at the time of depart from overseas for possible alternate searches for records pertaining to the applicant. h. a letter from the National Personnel Records Center, dated 1 May 2008, to a member of Congress from North Carolina advising her the applicant's records were not available due to the 1973 fire. However, a copy of the applicant's separation document had been obtained from an alternate source and provided to her. Additionally, the Center was able to verify the applicant's entitlement to the following awards which were being shipped to the applicant: * Army of Occupation Medal with Japan clasp * National Defense Service Medal * Korean Service Medal with one silver service star and one bronze service star * Combat Infantryman Badge * United Nations Service Medal i. a letter from the Adult Reference Department, Birchard Public Library, dated 6 May 2008, advising Counsel microfilm copies of the local newspaper failed to produce any article concerning the applicant. j. a letter from the Chief, Military Awards Branch, U.S. Army Human Resources Command (HRC), dated 14 May 2008, in response to a Congressional Inquiry, dated 6 May 2008, on behalf of the applicant that shows, in part: (1) A review of the Surgeon General Hospital Admission Listings and did not locate any hospital admission records pertaining to the applicant;? (2) A search of historical awards records for the Korean War era failed to produce general orders awarding the applicant the Purple Heart; (3) The applicant's award of the Purple Heart could not be authorized without official documentation reflecting treatment for wounds received as a result of enemy action. Criteria for award of the Purple Heart and alternative record sources were provided. Additionally, the applicant's award entitlements were provided. k. a memorandum from the Chief, Military Awards Branch, dated 14 May 2008, subject: Update of Individual Record of Applicant, which shows the applicant's records were updated to reflect his entitled awards and decorations and he was issued a DD Form 215 to show his entitled awards. l. a self-authored letter to the National Personnel Records Center, dated 12 June 2008, in which he provided the Center with additional information pertaining to the applicant for a further search of the applicant's record. m. a letter from the National Personnel Records Center to the applicant's member of Congress, dated 29 August 2008, in which a copies of morning reports for the Headquarters Company, 17th Regiment, 62d Signal Battalion, 7th Division, from November 1949 to January 1950 along with a search for information while the applicant was hospitalized in Tokyo were provided. 9. On 5 March 2009 and in ABCMR Docket Number AR20080017966, the Board denied the applicant's request for award of the Purple Heart. The Board determined the evidence provided by the applicant indicated that he was accidently wounded by one of his comrades and if such was the case, he would not be entitled to award of the Purple Heart and in the absence of sufficient evidence to establish that he was wounded as a result of enemy action and that the treatment was made a matter of record, there appeared to be no basis to award him the Purple Heart at the time. 10. Counsel provided a copy of a statement from the applicant's daughter, dated 3 April 2014, in which she stated she remembered seeing the scar from her father's bullet wound in his upper right shoulder area on many occasions and he told her when she was still young that the scar was from a bullet wound that he got while in the Army in Korea. 11. On 9 July 2014, Counsel submitted a request for correction of the applicant's records to show award of the Purple Heart. 12. On 21 July 2014 and in ABCMR Docket Number AR20140012519, the Chief, Case Management Division acknowledged receipt of Counsel's request for correction of the applicant's records, dated 9 July 2014. 13. On 3 March 2015 and in ABCMR Docket Number AR20140012519, the ABCMR staff determined Counsel's request for correction of the applicant's records for award of the Purple Heart was a reconsideration of ABCMR Docket Number AR20080017966, which had been considered by the Board on 5 March 2009. Additionally, ABCMR staff determined the request for reconsideration was not submitted within 1 year of the ABCMR's original decision and as a result, the request did not meet the criteria for reconsideration. The case was closed without further action. 14. The applicants name does not appear on the Korean Casualty List. 15. The applicant's available records are void of any military medical records showing he received treatment for a wound or injury incurred as a result of enemy action. BOARD DISCUSSION: After review of the application and all evidence, including the applicant’s statement, the Board found insufficient evidence to grant relief and amend the decision of the ABCMR in Docket Number AR20080017966 on 5 March 2009. The Board determined that the preponderance of evidence indicates he was accidently wounded by one of his comrades. The record contains insufficient evidence to establish that he was wounded as a result of enemy action and that the treatment was made a matter of record. Therefore the Board found that the applicant does not meet the regulatory requirements for award of the Purple Heart Medal. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is insufficient to warrant amendment of the ABCMR's decision in Docket Number AR20080017966 on 5 March 2009. 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. ADMINISTRATIVE NOTE(S): N/A. ? REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 600-8-22 prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. a. The Purple Heart is awarded in the name of the President of the United States to any member of an Armed Force of the United States under the jurisdiction of the Secretary of the Army, who, after 5 April 1917, has been wounded, killed, or who has died or may hereafter die of wounds received, under any of the following circumstances: (1) In any action against an enemy of the United States. (2) In any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged. (3) While serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party. (4) As the result of an act of any such enemy or opposing Armed Forces. (5) As the result of an act of any hostile foreign force. (6) After 7 December 1941, pursuant to Title 10, United States Code, section 1129, as a result of friendly fire provided the member was killed or wounded in action by friendly weapon fire while directly engaged in armed conflict, other than the result of an act of an enemy of the United States, unless (in the case of a wound) the wound is the result of the willful misconduct of the member. (7) On or after 7 December 1941, to a member who is killed or dies while in captivity as a Prisoner of War under circumstances establishing eligibility for the Prisoner of War Medal, unless compelling evidence is presented that shows the member’s death was not the result of enemy action. b. A physical lesion is not required. (1) Treatment of the wound will be documented in the member’s medical and/or health record. (2) Award may be made for a wound treated by a medical professional other than a medical officer provided a medical officer includes a statement in the member’s medical record that the severity of the wound was such that it would have required treatment by a medical officer if one had been available to provide treatment. (3) A medical professional is defined as a civilian physician or a physician extender. Physician extenders include nurse practitioners, physician assistants, and other medical professionals qualified to provide independent treatment (to include Special Forces medics). Medics (such as combat medics – military occupational specialty 68W) are not physician extenders. (4) A medical officer is defined as a physician with officer rank. The following are medical officers: (a) An officer of the medical corps of the Army. (b) An officer of the medical corps of the U.S. Navy. (c) An officer in the U.S. Air Force designated as a medical officer in accordance with Title 10, United States Code, section 101. 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 trap or mine. (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. (6) Mild traumatic brain injury or concussion severe enough to cause either loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the concussive incident. d. Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: (1) Frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951).? (2) Trench foot or immersion foot. (3) Heat stroke. (4) Food poisoning not caused by enemy agents. (5) Chemical, biological, or nuclear agents not released by the enemy. (6) Battle fatigue. (7) Disease not directly caused by enemy agents. (8) Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action. (9) Self-inflicted wounds, except when in the heat of battle and not involving gross negligence. (10) Post traumatic stress disorders. (11) Airborne (for example, parachute/jump) injuries not caused by enemy action. (12) Hearing loss and tinnitus (for example: ringing in the ears). (13) Mild traumatic brain injury or concussions that do not either result in loss of consciousness or restriction from full duty for a period greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function. (14) Abrasions and lacerations (unless of a severity to be incapacitating). (15) Bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer) (16) Soft tissue injuries (for example, ligament, tendon or muscle strains, sprains, and so forth). (17) First degree burns. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190003551 8 1