MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
                                   
        

         BOARD DATE: 31 January 2002
         DOCKET NUMBER: AR2001058474


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

Mr. Carl W. S. Chun		Director
Mr. W. W. Osborn, Jr.		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. Elzey J. Arledge		Member
Ms. Regan K. Smith		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
                  records

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

APPLICANT REQUESTS: Reconsideration of his earlier appeal to correct his military records by awarding him the Purple Heart

APPLICANT STATES: In effect, that he fell asleep while on guard duty and was shot by a Japanese infiltrator. To avoid possible punishment for sleeping on guard duty, he told his chain of command that he had accidentally shot himself while cleaning his weapon. Correspondence from a Department of Veteran Affairs (VA) psychologist, who has been an advocate for the applicant, is offered to substantiate his case. Included in that correspondence is a copy of a 13 July 1978 Department of the Army (DA) Form1577 (Authorization for Issuance of Awards) which indicates that the applicant is entitled to the Purple Heart.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records, which were summarized in the decisional document, prepared to reflect the Board's previous consideration of the case (AR2000047214) on 14 December 2000.

The DA Form 1577 showing the applicant is entitled to the Purple Heart is new evidence that requires Board consideration.

The VA psychologist also argues that the Board’s previous decision is based upon “circular reasoning and an unwillingness to consider the word of the veteran.” He contends, in effect, that the Board’s conclusion is based on circular reasoning because the evidence of record shows that the wound was self-inflicted. He concludes that, “If the records were accurate, they would not need to be corrected.”

The psychologist had earlier cited a mid-1945 exchange of memoranda between the hospital commander and the applicant’s unit concerning a line of duty determination. He pointed out that, in the end, the applicant’s injury was determined to have been incurred in the line of duty.

A 2 May 1976 letter from the Office of the Adjutant General, Department of the Army informed the applicant that he was not entitled to the Purple Heart because his military and medical records showed that his wound had been accidentally self inflicted.

A 10 October 1978 letter from the Office of the Secretary of the Army informed a Member of Congress the applicant was not entitled to the Purple Heart. The applicant, himself, had stated, in a 4 July 1978 letter that, “the injury to his arm was incurred by his own gun when it accidentally discharged while he was cleaning it.”

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Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against the 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, and the medical treatment must have been made a matter of official record.

Examination of World War II medical records, and especially filed medical record tags shows that line of duty determinations were not normally entered for combat casualties. It was unnecessary to make a line of duty determination for soldiers wounded in action or as the result of enemy action because they were clearly identified as such. The Line of Duty block on the field medical record tags of soldiers wounded in combat or as the result of enemy action bore entries such as WIA,” “LWA” meaning lightly wounded in action or “SWA” for seriously wounded in action or were simply designated “Battle Casualty.”

Army Regulation 600-8-104 (Military Personnel Information Management/Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records. In pertinent part, this regulation states that for U.S. military decorations the only acceptable source documentation is the order, letter, or memorandum which awards the decoration. Award certificates, citations, or separation certificates alone will not be the basis for entry of a decoration. DD Form 214 (Certificate of Release or Discharge) alone should not be the sole basis for recording a decoration. This document may be used to initially enter a decoration; however, if the validity of the award on the DD 214 is questioned or challenged, the only acceptable proof of award of the decorations will be the order, letter, or memorandum, which awarded the decoration. A DA Form 1577, in and of itself, is not accepted as the basis for correcting an individual’s record.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence that was not in the record at the time of the Board’s prior consideration. This includes but is not limited to any facts or arguments as to why relief should be granted. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than one year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.

2. At this time it is impossible to determine what, if any, evidence was available in 1978 to support the DA Form 1577 entry that the applicant was entitled to the Purple Heart. Absent supporting evidence of record, this Board consistently finds DA Forms 1577 inadequate as the sole basis for correcting an individual’s record.

3. The applicant’s own contention that, notwithstanding the evidence of record, he was actually shot by any enemy soldier is insufficient to overcome the evidence of record, especially, in light of the fact that, as late as 1978 he, himself, apparently stated that the wound had been accidentally self-inflected.

4. Furthermore, his personal assertion does not meet the regulatory requirement that, “Substantiating evidence must be provided to verify that the wound was the result of hostile action.” Additionally, the applicant’s assertion is simply not credible, because soldiers on guard duty do not clean their weapons. To do so would obviate their purpose for being on guard duty.

5. The psychologist’s criticism of the Board’s prior decision a “circular reasoning” does not demonstrate an error or an injustice in the applicant’s record. The Board is required to presume regularity in the existing record. Each applicant has the responsibility to demonstrate, by evidence and/or argument that the requested relief is warranted. The applicant has failed to satisfy this requirement.

6. The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision.

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7. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.


BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__RVO__ __EJA___ __RKS__ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2001058474
SUFFIX
RECON
DATE BOARDED	20020131
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
REVIEW AUTHORITY
ISSUES 1.	107.00
2.
3.
4.
5.
6.