IN THE CASE OF:	

		BOARD DATE:	  15 October 2008

		DOCKET NUMBER:  AR20080012368 


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, he believes that his record is in error because his loss of hearing was not noted in his service record.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States), with an effective date of 18 December 1953; and 2 pages of his Department of Veterans Affairs (DVA), Rating Decision, with an effective date of 7 November 2007.

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 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.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant’s available military service records show he enlisted and entered active duty in the Regular Army for a period of 3 years on 4 January 1951.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 1602 (Anti-Aircraft Artillery Crewman). 

4.  The applicant’s available military service records contain a copy of his
DD Form 214 that shows he entered into active service on 4 January 1951. Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Good Conduct Medal, National Defense Service Medal, Korean Service Medal with 2 bronze service stars, Army of Occupation Medal with “Japan” Device, and the United Nations Service Medal.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) contains the entry “N/A.”  The applicant’s DD Form 214 also shows that he was honorably discharged on 18 December 1953 and credited with completing 2 years, 11 months, and 15 days net service for pay purposes this period.

5.  There are no orders in the applicant’s available military service records that show he was awarded the Purple Heart.  There also is no evidence in his records that show he was wounded or injured, or treated for wounds or injuries, as a result of hostile action.  In addition, the applicant's name is not listed on The Adjutant General Office, Casualty Division's Korean Casualty Roster.

6.  In support of his application, the applicant provides a copy of his DD Form 214, with an effective date of 18 December 1953, that was previously introduced and considered in this Record of Proceedings.  He also provides 2 pages of his DVA Rating Decision, with an effective date of 7 November 2007.  This document shows the applicant’s service-connected condition (i.e., hearing loss) was rated 80 percent, effective 28 October 2004, and that the evaluation of hearing loss was increased to 100 percent disabling, effective 7 November 2007.

7.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards and, in pertinent part, contains the regulatory guidance pertaining to awarding the Purple Heart.  It states that the Purple Heart is awarded to any member who has been wounded or killed in action.  A wound is an injury to any part of the body from an outside force or agent sustained as a result of hostile action.  In order to support awarding a member the Purple Heart, it is necessary to establish that the wound for which the award is being made required treatment by medical personnel.  This treatment must be supported by records of medical treatment for the wound or injury received in action, and must have been made a matter of official record at the time.  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.

8.  Title 38, United States Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in, or aggravated by, active military service.  However, the DVA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  In addition, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  Furthermore, the DVA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show award of the Purple Heart because his hearing loss is documented in his medical records and he has been granted a 100 percent disability rating by the DVA based on his service-connected condition.  

2.  The applicant’s contentions and the documentary evidence he provides was carefully considered.  In this regard, it is noted that the DVA may award compensation for disabilities which were incurred in, or aggravated by, active military service and may also rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.  Thus, the applicant’s disability rating by the DVA, in and of itself, provides insufficient evidence to support the applicant’s claim to the Purple Heart.

3.  There is no evidence the applicant was awarded the Purple Heart.  There is no official documentary evidence in the applicant's military service records that supports his contention that he sustained a wound or injury (i.e., hearing loss) as a result of hostile action, that he was treated for such a wound or injury by a medical officer, or that the medical treatment was made a matter of official record.  In addition, the applicant's name is not listed on The Adjutant General Office, Casualty Division's Korean Casualty Roster.  Therefore, there is insufficient evidence upon which to base award of the Purple Heart in this case.

4.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  The applicant has failed to provide such evidence.

5.  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.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  ___X____  ___X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.



2.  The Board wants the applicant and all others concerned to 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.



      _________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)                                         AR20080012368



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ABCMR Record of Proceedings (cont)                                         AR20080012368



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