RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 September 2007
	DOCKET NUMBER:  AR20070004768 


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




Director


Analyst

The following members, a quorum, were present:




Chairperson


Member


Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

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


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests award of the Purple Heart.

2.  The applicant states, in effect, he had "jungle rot on the bottom of my feet" when he was in Seoul, Korea.  The applicant further states that he was given a Purple Heart, but, due to the limited availability of Purple Hearts at the time, he gave his to another wounded Soldier who had lost his legs.  The applicant further states he did not request another Purple Heart when he returned to the United States.

3.  The applicant provides a copy of his WD-AGO 53-55 (Enlisted Record and Report of Separation Honorable Discharge) and a letter from the Department of Veterans Affairs Regional Office (VARO) Seattle, Washington in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), 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.  While it appears 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.  The applicant’s service personnel records were lost or destroyed in a fire at the National Personnel Records Center in 1973.  The records available to the Army Board for Correction of Military Records were provided in part by the applicant and also obtained from alternate sources and are sufficient for the Board to conduct a fair and impartial review of this case.  

3.  The applicant's available records contain an AG Oregon Form 189 (Statement of Prior Military Service Oregon National Guard), dated 10 September 1979.  The form documents the applicant's period of service in the Oregon Army National Guard during the period from 4 April 1955 to 3 April 1958.  This form shows the applicant had 3 qualifying years for retirement and included periods of active duty for training during the periods from 11-25 June 1955, 16-30 June 1956, and 
15-29 June 1957.
4.  The applicant's available records contain an NGB Form 22 (Report of Separation and Record of Service in the Army National Guard of Oregon).  This form reports the applicant's honorable discharge from the Oregon Army National Guard on 3 April 1958, due to the expiration of term of enlistment.  The form reports the applicant's date of enlistment in the Oregon Army National Guard as 4 April 1955.

5.  The applicant's available records contain a letter, dated 28 May 2003, from the National Personnel Records Center (NPRC), St. Louis, Missouri.  NPRC informed the applicant that his records were destroyed in the fire that occurred on 12 July 1973 at NPRC.  NPRC further informed the applicant that they were unable to verify any service for him in the Regular Army.  NPRC further informed the applicant that they did have verification of his service in the Oregon Army National Guard from 1954-1957 and his inactive U.S. Army Reserve service from 1957-1960.

6.  The WD AGO 53-55 submitted by the applicant shows he served in the Regular Army from 27 May 1953 to 9 November 1957.  This form also shows the applicant was honorably discharged on 9 November 1957 in pay grade E-8.

7.  The letter, dated 9 March 2007, submitted by the applicant, from the VARO Seattle reports that Department of Veterans Affairs records show the applicant as having entered active duty on 27 May 1953 and being released from active duty on 9 November 1957 with the rank of command sergeant major - E-9.

8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained 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.  This regulation lists injuries or wounds which clearly do not justify the award of the Purple Heart.  Included on this list is disease not directly caused by enemy agents.

9.  Department of the Army Message 344303, dated June 1958, added pay grades E-8 and E-9 and restructured the titles of the enlisted grade structure of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The WD AGO 53-55 submitted by the applicant is inconsistent with the available records at the NRPC.  The applicant's verified service in the Oregon Army National Guard falls within the time period indicated on the WD AGO
53-55.
2.  The WD AGO 53-55 submitted by the applicant shows his pay grade as E-8.  Pay grades E-8 and E-9 were not established until June 1958. 

3.  Therefore, the WD AGO 53-55 submitted by the applicant was not considered in the determination of this case.

4.  The applicant stated he had "jungle rot on the bottom of my feet."  Army Regulation 600-8-22 specifically precludes the award of the Purple Heart for a disease not directly caused by enemy agents.

5.  There is no substantiating evidence to show the applicant was injured as a result of hostile action, the injuries required treatment, or that the medical treatment was made a matter of official record.

6.  In the absence of military records, which show the applicant was wounded or injured or treated for wounds or injuries as a result of hostile action, there is insufficient basis for award of the Purple Heart in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____lds__  ___fcj___  ___cd___  DENY APPLICATION

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 for correction of the records of the individual concerned.





__________Linda S. Simmons_____
          CHAIRPERSON




INDEX

CASE ID
AR20070004768
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070906
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.