IN THE CASE OF:	  

		BOARD DATE:	        09 OCTOBER 2008

		DOCKET NUMBER:  AR20080011165 


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's request is submitted through his counsel and Representative in Congress.

2.  The applicant defers to his counsel's statements.

3.  The applicant's counsel provides the evidence shown below.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's denial of award of the Purple Heart.

2.  Counsel provides lengthy arguments as follows: 

	a.  The majority of the applicant's military records were lost or destroyed in the 1973 fire at the National Personnel Records Center, yet, in its decision, the Board concludes that there were sufficient documents remaining to conduct a fair and impartial review of the applicant's case.  The applicant respectfully disagrees with this conclusion, given the "constructively absolute documentation requirements of Army Regulation 600-8-22 (Military Award)." 

	b.  The applicant disagrees with the Board's conclusion that the letter of support from a U.S. Army Reserve (USAR) colonel, military intelligence officer, does not carry the same weight as if he had any medical training, or any 
weapons or ordnance experience.  He provides a lengthy description of the applicant's military experience with weapons, and his observation of the wounded in World War II, the Korean Conflict, and the Vietnam War. 

	c.  The lack of service medical records should not be a separate negative factor since the Department of Veteran Affairs (DVA) granted the applicant service-connection for scars and shrapnel fragment wounds. 

	d.   A high proportion of discharge documents were executed with errors and, because the applicant's shows "NONE" in block 34 for "Wounds Received in Action," it should not be a deterrent to award the Purple Heart.

	e.  Insufficient weight was given to the applicant's personal qualifications and direct observations.

	f.  The Purple Heart has never been awarded on absolutely conclusive evidence.

	g.  Medics in field dispensaries could not, under triage pressure to save lives, be expected to maintain perfect medical records.  

	h.  He has provided DVA documents filed on 15 March 1948, 23 months after the applicant's discharge showing he had scars and embedded shrapnel.  

	i.  A declassified document showing that 53 men were wounded in action is consistent with the applicant's memories.

	j.  The applicant has only a 10th grade education and he demonstrated a lack of sophistication by not formally claiming service-connect disabilities through the DVA until May 2005.  

3.  Counsel provides a copy of the prior Board decision; DVA Rating Work Sheet from 13 March 1948; DVA Rating Decisions, dated 15 March 1948, 28 January 1949, and 16 November 2005; a DVA physical examination, January 1949; and a Report of Operations for the 13th Infantry, in support of this application.

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 AR200600009461, on 13 March 2007.

2.  A majority of the new evidence submitted by the applicant consists of his counsel's arguments in his behalf disagreeing with how the Board reached its decision in his case.  These arguments, in themselves, are not considered new evidence.

3.  The applicant also provided medical evidence of a DVA work sheet, dated
13 March 1948, showing that he had a shrapnel wound, to the anterior left thigh which was not annotated on his separation physical.  

4.  A DVA rating decision from 15 March 1948 notes that the rating decision for shrapnel, anterior, left thigh, was deferred for development of evidence of time and place of treatment in service because his separation physical was negative.  

5.  A DVA physical examination on 14 January 1949 noted a shrapnel wound to the applicant's anterior left thigh.

6.  A DVA rating decision, dated 28 January 1949, denied the applicant service-connection for a shrapnel wound to the anterior left thigh because there was no record of the wound, treatment of the wound, or award of the Purple Heart.  The applicant was notified on 25 March 1948 of the required evidence regarding his wound; however, he never responded.  

7.  A 16 November 2005 DVA rating decision, denied the applicant service- connection for a shrapnel wound to the anterior left thigh and deferred the issues of residual scars, shrapnel wounds to the back of head, left thigh, index finger and thumb, and left hand.  (In a later decision, dated 16 February 2006, the DVA granted the applicant service-connection for scars to right index finger, left index finger and thumb due to shrapnel, and for a shrapnel wound to the anterior left thigh.)

8.  The applicant submitted a copy of a Report of Operations for the 13th Infantry for the period 22-31 January 1944.  While this report shows the number of Soldiers wounded in action, it does not show that the applicant was wounded as a result of hostile action. 

9.  The medical evidence, DVA rating decisions from 1948 and 1949, and unit report are new evidence not considered in the Board's previous decision.

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

DISCUSSION AND CONCLUSIONS:

1.  Counsel's arguments disagreeing with how the applicant's prior case was adjudicated do not constitute new evidence.  

2.  The applicant provided a DVA physical examination from January 1949, which noted his shrapnel wound to the anterior left thigh.  The DVA rating decisions from 1948 and 1949 denied him service-connection for his shrapnel wounds based on the absence of any evidence in his separation physical that he was wounded in action and lack of a Purple Heart.

3.  As noted in the previous decision, the DVA later granted the applicant service-connection for scars to right index finger, left index finger and thumb due to shrapnel, and for a shrapnel wound to the anterior left thigh.  The DVA based its decision on the applicant's award of the Combat Infantryman Badge and his own statements regarding his military injuries.  The fact that the DVA, in its discretion, may have awarded the applicant benefits for his shrapnel wounds is a prerogative exercised within the policies of that agency.  It does not, in itself, establish entitlement to the Purple Heart. 

4.  Regrettably, there is still insufficient evidence to establish that the applicant was wounded as a result of hostile action.  Although he provided a report of operations for his unit, this report does not show by name that he was wounded in action.  Based on the available evidence, the applicant has not provided sufficient evince to warrant a change in the Board's prior decision.

5.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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 AR20060009461, dated 13 March 2007.



      ___        XXX                ___
                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)                                         AR20080011165



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ABCMR Record of Proceedings (cont)                                         AR20080011165



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