RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 March 2007
	DOCKET NUMBER:  AR20060011560 


	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.


Mr. Gerard W. Schwartz

Acting Director

Mr. G. E. Vandenberg

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. John T. Meixell

Member

Mr. Roland S. Venable

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 a reconsideration of his application for award of the Purple Heart.

2.  The applicant states that he has been told that, under Title 38 United States Code (USC), when no evidence exists to prove that an individual was wounded in action the fact that he and his outfit were in combat at that time and the individual says he was wounded, the Board must rule in his favor.  His receipt of Department of Veterans Affairs (VA) disability benefits shows he was wounded in combat and is therefore entitled to the Purple Heart.

3.  The applicant provides five pages from a book that he wrote about his service in Korea, a 3 July 1951 letter he wrote addressed to his fiancée, a Morning Report from G Company (highlighted), 19th Infantry Regiment for the period 1 July 1951, a 28 June 2005 Department of Veterans Affairs (VA) Rating Decision memorandum, and an excerpt from Title 38 USC (Veterans' Benefits), subsection 1154.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050013170, on 22 June 2006.

2.  The applicant’s military records are not available to the Board 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.  

3.  The documentation and arguments provided by the applicant are identical to the material previously submitted except for the inclusion of the Title 38 citation and the argument that this provision must be applied to his request.

4.  Title 38 USC (Veterans' Benefits) sets forth the laws relating to the operation of the Department of Veterans Affairs.  Section 101 states that for the purposes of this title the terms "Secretary'' and "Department'' mean the Secretary of Veterans Affairs and the Department of Veterans Affairs, respectively.


5.  Title 38 USC, Part II, Chapter 11, Subchapter VI, § 1154 states that the Secretary shall include in the regulations pertaining to service-connection of disabilities provisions in effect requiring that in each case where a veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such veteran’s service as shown by such veteran’s service record, the official history of each organization in which such veteran served, such veteran’s medical records, and all pertinent medical and lay evidence.  In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran.  Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary.  

6.  Title 10 USC (Armed Forces) sets forth the laws relating to the operation of the Department of Defense and it's subordinate entities, including the Department of the Army.  These laws are further delineated and the policies and procedures for operation of the Department of Army are set forth in a series of Army Regulations.  

7.  The Army Board for Correction of Military Records (ABCMR) operates pursuant to Title 10, USC, § 1552 and Army Regulation 15–185 (Boards, Commissions, and Committees, Army Board for Correction of Military Records).  These regulations prescribe the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph   2–9 (Burden of proof) states that 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.

8.  Army Regulation 600-8-22 (Military Award), paragraph 2-8 provides for award of the Purple Heart to an individual who is wounded in action against an enemy of the United States, the armed force of a foreign country which is or has been engaged, while serving with a friendly foreign forces against an opposing force even though the U.S. is not engaged, as the result of any act of such enemy or opposing force or as a result an act of any hostile foreign force.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The documentation and arguments provided by the applicant is identical to the material previously submitted except for the inclusion of the Title 38, USC citation and his argument that the doctrine of reasonable doubt are required to be applied by the ABCMR.

2.  Title 38 USC relates to benefits administered by the Department of Veterans Affairs, whereas Title 10 USC relates to operations and procedures administered by the Department of Defense, including the Department of Army.  The two sets of laws and regulations are not interchangeable.

3.  The VA is required to apply the doctrine of reasonable doubt in the development of applications to that agency.  Whereas the ABCMR is required to apply the presumption of regularity in governmental affairs and the burden of proof to show that an error exists lays with the applicant. 

4.  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.  The applicant has failed to submit evidence that would satisfy this requirement.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JTM___  _LDS___  __RSV __  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 to amend the decision of the ABCMR set forth in Docket Number AR20050013170, on 22 June 2006.




__Linda D. Simmons_______
          CHAIRPERSON


INDEX

CASE ID
AR20060011560
SUFFIX

RECON
 
DATE BOARDED
 20070322
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
  . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.