IN THE CASE OF:	  

	BOARD DATE:	  

	DOCKET NUMBER:  AR20080006137 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, award of the Purple Heart.

2.  The applicant states, in effect, that he was in a chemical explosion that burned 50 percent of his body and believes he should have been awarded the Purple Heart.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 28 March 1980.

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 military service records show that he enlisted in the U.S. Army Reserve on 1 February 1978 and entered active duty in the Regular Army for a period of 3 years on 8 August 1978.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 12B (Combat Engineer).

3.  The applicant's military service records contain a DA Form 2-1 (Personnel Qualification Record).  Item 5 (Oversea Service) shows the applicant was assigned overseas to U.S. Army, Europe (USAREUR) in Germany on
30 November 1978.  Item 9 (Awards, Decorations and Campaigns) shows he was awarded the Good Conduct Medal, Expert Marksmanship Qualification Badge with Grenade Bar, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  Item 38 (Record of Assignments), in pertinent part, shows the applicant was assigned to Company D, 547th Engineer Battalion (Germany), in duty MOS 12B1O (Combat Construction Specialist), effective 1 December 1978. This item also shows that the applicant was assigned in a patient status to the Medical Holding Detachment, Landstuhl Army Regional Medical Center (Germany), effective 9 December 1979.  This item further shows that the applicant was medically evacuated from Germany on 10 December 1979 and was assigned in a patient status to the Medical Holding Company, Brooke Army Medical Center, Fort Sam Houston, Texas, effective 17 December 1979.  

4.  The applicant’s military service records contain a DD Form 261 (Report of Investigation), dated 7 February 1980, with command endorsements and enclosures.  The Line of Duty Investigation (LODI) shows, in pertinent part, that at approximately 1345 hours, 9 December 1979, the applicant was burnt while cleaning a shower room in preparation for the Annual General Inspection (AGI) when gasoline was placed on the floor to be used as a cleaning agent and an electric buffer was used to scrub the floor.  The LODI also shows that a spark from the buffer ignited the gasoline and the freshly painted walls, and the applicant sustained first, second, and third degree burns over 50 percent of his body surface.

5.  The applicant’s military service records contain his DD Form 214, with an effective date of 28 March 1980.  Item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Good Conduct Medal, Expert Marksmanship Qualification Badge with Grenade Bar, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  This document also shows that the applicant was honorably retired from active duty on 28 March 1980 based on temporary physical disability.  At the time, he was credited with completing 1 year and
17 days foreign service; 6 months and 7 days total prior inactive service; and
1 year, 7 months, and 21 days net active service this period.

6.  The applicant’s military service records contain a copy of Headquarters,
U.S. Army Military Personnel Center, Alexandria, Virginia, Orders D57-6, dated 21 March 1980, that show he was placed on the Temporary Disability Retired List (TDRL), with a percentage of disability of 50 percent, effective 29 March 1980.

7.  The applicant’s military service records contain a DA Form 199 (Physical Evaluation Board Proceedings), dated 16 December 1982.  This document shows that current evaluation of the applicant indicated no unfitting condition and the Physical Evaluation Board recommended removal of the applicant from the TDRL.  This document also shows that the recommendation was approved by the Chief, Operations Section, U.S. Army Physical Disability Agency, on behalf of the Secretary of the Army on 12 January 1983.

8.  The applicant’s military service records contain a copy of Headquarters, Office of The Adjutant General, U.S. Army Reserve Components Personnel and Administration Center, St. Louis, Missouri, Orders D-01-001371, dated
24 January 1984, that show the applicant was honorably discharged from the U.S. Army Reserve Control Group, Ready Reserve, effective 31 January 1984.

9.  There are no orders in the applicant’s military service records that show he was awarded the Purple Heart.  Item 9 (Awards, Decorations and Campaigns) of his DA Form 2-1 does not show award of the Purple Heart.  There also is no evidence in the applicant’s records that he was wounded or treated for wounds as a result of hostile action.

10.  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 a result of hostile action, that the wound must have required treatment by a medical officer, and that the medical treatment was made a matter of official record.  This regulation also provides examples of injuries or wounds which clearly do not qualify for award of the Purple Heart and cites, in pertinent part, accidents involving explosive, aircraft, vehicular, and other accidental wounds or injuries not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show award of the Purple Heart because he was in a chemical explosion that burned 50 percent of his body.

2.  There is no evidence the applicant was awarded the Purple Heart.  There is no medical evidence of record that shows the applicant was wounded or treated for wounds as a result of hostile action.

3.  The evidence of record shows that the applicant was serving overseas in Germany on 9 December 1979 when he sustained burns over 50 percent of his body as a result of a chemical explosion that occurred while he was cleaning a shower room with a buffer and using gasoline as a cleaning agent.  Thus, the evidence of record shows that the incident that caused the applicant to be injured was the result of an accident.  The evidence of record clearly shows that accidents involving explosive, aircraft, vehicular, and other accidental wounds or injuries that are not related to or caused by enemy action do not qualify for award of the Purple Heart (emphasis added).  Thus, based on the available evidence, the applicant’s claim to the Purple Heart is not supported by the evidence of record in this case.  Therefore, the applicant is not entitled to correction of his records to show award of the Purple Heart.

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

____X___  ___X_____  __X______  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.



      ___________X____________
      	CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20080006137



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ABCMR Record of Proceedings (cont)                                         AR20080006137



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