IN THE CASE OF:
BOARD DATE: 11 SEPTEMBER 2008
DOCKET NUMBER: AR20080011307
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 that the records of her deceased husband, a former service member (FSM) be corrected to show that he was awarded the Purple Heart (posthumously) and that the award be included on his Report of Separation (DD Form 214).
2. The applicant states that the FSM should have been awarded the Purple Heart for a gunshot wound to his left upper arm; however, he never got the award.
3. The applicant provides in support of her application, a copy of the FSMs Certificate of Death; a copy of the FSMs DD Form 214; a copy of a letter from the Department of Veterans Affairs (VA) dated 14 October 2005; and a copy of a VA Rating Decision dated 30 August 2005.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The FSMs military records are not available to the Board. This case is being considered using records, which primarily consist of documents that were submitted by the applicant.
3. On 21 October 1949, the FSM enlisted in the Army in Puerto Rico, for 3 years, in the pay grade of E-1. He successfully completed his training as a light weapons infantryman.
4. After his period of enlistment was involuntarily extended, the FSM was honorably discharged on 19 December 1952, under the provisions of Army Regulation 615-365, for the convenience of the Government.
5. The DD Form 214 that the applicant submitted in support of her application shows that the FSM was awarded the Korean Service Medal with one bronze service star, the Combat Infantryman Badge and the United Nations Service Medal. Block 29 (WOUNDS RECEIVED AS A RESULT OF ACTION WITH ENEMY FORCES) on the FSMs DD Form 214 reads None.
6. The notification letter from the VA dated 14 October 2005 and the VA Rating Decision dated 30 August 2005 that the applicant submitted in support of her application indicates that she filed an application with the VA for death benefits on 28 February 2005. On 13 April 2005, the FSM was posthumously awarded a 0 percent service-connected disability rating for left deltoid scar, status post left arm wound, effective 20 August 2001. However, no monetary compensation was awarded.
7. A review of the available information, which includes the Korean Casualty File, does not show that the FSM was ever wounded as a result of hostile action while he was in the Army.
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 by medical personnel, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. In order to justify correction of a military record the applicant must show 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.
2. There is no evidence in the available records, nor has the applicant submitted any evidence to show that the FSM was wounded as a result of hostile action when he was in the Army.
3. The applicants contentions have been noted. The documents that she submitted in support of her application have also been noted. However, none of these documents are sufficiently mitigating to warrant awarding the FSM the
Purple Heart. While the VA granted him a 0 percent service-connected disability rating for a deltoid scar on his left arm, there is no available evidence that shows that the scar was a wound that resulted from hostile action while he was in the Army.
4. The DD Form 214, which the FSM signed at the time of his discharge, reads None in the block where any wounds that he may have received as a result of hostile action would have been listed. In the absence of evidence to the contrary, it must be presumed that what the Army concluded in his case was correct.
5. In view of the foregoing, there is no basis for granting the applicant's request.
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 for correction of the records of the individual concerned.
___ 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.
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