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Jacobson v. Dep't of the Army Board for Correction of Military Records

September 29, 2009

BOBBY N. JACOBSON, PLAINTIFF,
v.
DEPARTMENT OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS, DEFENDANT.



The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge

ORDER*fn1

Previously pending on this court's law and motion calendar for May 14, 2009, was defendant's motion for summary judgment, filed April 6, 2009. Plaintiff appeared in pro se. Defendant was represented by Bobbie Montoya. Having reviewed the filings in support and in opposition to the motion, and having heard oral argument, the court now issues the following findings and recommendations.

BACKGROUND

Plaintiff, who is 78 years of age, seeks an order of this court directing the U.S. Department of the Army, Board for Correction of Military Records ("ABCMR"), to issue him a "Purple Heart" based on plaintiff's 1950 Army service in the Korean War during which plaintiff allegedly sustained shrapnel wounds to his back and chest wall while engaged in hostile action.*fn2

Plaintiff enlisted in the Regular Army on July 24, 1950 for a period of three years; he was released from active duty on September 29, 1953 with an undesirable discharge. Record of Proceedings, Aug. 17, 2006, at p. 2. Plaintiff describes the underlying facts as follows (Complaint, at pp. 1-2):

I was a soldier during the Korean War. In a firefight, a mortar round exploded behind me on the right side of my back. I also took shrapnel in my leg that I pulled out by hand. At first opportunity I went to the battalion and station and told the doctor there what had happened. He gave my back a quick look and said there was nothing wrong with me.

In 2003 I was in the Sutter Roseville, CA. Hospital for elective surgery and x-rays were taken that show shrapnel in my chest wall. I obtained those x-rays, made copies, and sent the copies, along with an explanation of what happened in Korea, to the ABCMR and asked it to change my records and issue me the Purple Heart for the wound. The Board has refused to do so and has forced me into the court for justice.

Plaintiff has submitted the following documentation demonstrating compliance with administrative procedures for obtaining the requested correction of his records:

1) January 11, 2008 x-ray report of plaintiff's abdomen by "Northern California HCS" (ordered by Dr. Michael Ashcraft), demonstrating in pertinent part a "Metallic fragment identified near the right chest wall, adjacent to the right 7th rib, likely shrapnel;" confirmed "outside chest x-ray report" submitted by plaintiff on July 12, 2007.

2) August 24, 2006 cover letter from ABCMR Director Carl Chun, and copy of the Board's August 17, 2006 Record of Proceedings, denying plaintiff's December 26, 2005 application to be awarded the Purple Heart. Director Chun informed plaintiff that the Board has nonetheless identified an administrative error in plaintiff's records that would be corrected, viz., that plaintiff had met the criteria for, and his records would be corrected to show, an award of the Korean War Service Medal. The Board's Record of Proceedings demonstrates it conducted a substantive review*fn3 of plaintiff's reconstructed military record*fn4 and concluded it did not "demonstrate the existence of a probable error or injustice." Record of Proceedings, Aug. 17, 2006, at p. 5. The Board reasoned, "Evidence did not contain any general orders which awarded the applicant the Purple Heart. There were no Army medical records available which show the applicant was wounded or treated for wounds as a result of hostile action during his service in Korea. In the absence of such evidence, there is insufficient basis for award of the Purple Heart in this case." Id., at p. 4.

3) June 19, 2007 letter from plaintiff to the Board challenging its August 2006 decision.

4) September 20, 2007 cover letter from ABCMR Director Catherine C. Mitrano, and copy of the Board's September 13, 2007 Record of Proceedings, denying plaintiff's request for reconsideration despite submission of additional evidence including an "article from the United States Army in the Korean War," a "morning report," and additional medical records.*fn5

DISCUSSION

I. SUMMARY JUDGMENT STANDARDS ...


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