IN THE CASE OF:	  

	BOARD DATE:	  16 December 2008

	DOCKET NUMBER:  AR20080015119 


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 reconsideration of his earlier request for correction of his military records to show award of the Purple Heart for wounds sustained in the Republic of Korea.

2.  The applicant states that having received the Board’s decision, he is compelled to further clarify the matter.  He wants to receive recognition for the sacrifices he made for our way of life, liberty, and the individual pursuits for happiness.  He addresses specific paragraphs in the CONSIDERATION OF EVIDENCE of the Record of Proceedings and interjects his feelings and facts as follow:

a.  (Paragraph 1)  He is glad that the Board elected to conduct a “substantive 
review” of this case.  However, he finds that there are areas that need to be looked into and investigated.

b.  (Paragraph 2)  With regard to the Board’s statement that even though his 
records were destroyed there were still some records remaining from which the Board made a decision; he asks what those records were and why he was not provided a copy of them.

c.  (Paragraphs 3-5)  He does not dispute the information noted.  	

      
      
      
d.  (Paragraph 6)  The referenced DD Form 214 shows in Item 29 the entry 
“None” concerning wounds received as a result of action with enemy forces.  He states that at the time that he was injured, his tank commander reported this action to the platoon sergeant and that the platoon leader was notified.
      
e.   (Paragraphs 7 and 8)  He argues that just because the available records 
do not contain information regarding an order for award of the Purple Heart, that does not mean there was none in the records that were burned.  

f.  (Paragraph 9)  He argues that, because medical records are missing is not 
a good reason to deny him the Purple Heart for wounds sustained while in action. He states that he wanted to get medical attention but was rushed back to participate in the surge at Heartbreak Ridge.  That is why his name is not on the casualty file.

g.  (Paragraph 10)  He contends that, because the Board included his 
statement about how his tank commander had helped stop his bleeding and bandaged his wound, there should be no question about his being wounded in action.

h.  (Paragraph 11)  He states that, "the pathology report provided to you was 
related to the area where I was wounded.  Medical studies regarding substances conducive to carcinogens growth may be in direct correlation to the pieces of shrapnel that was imbedded in my forehead."

i.  He states that the assumptions made by the Board were unfair.  The fact 
that his military records were lost in a fire and that pertinent individuals were not contacted to attest to the events that transpired, leads him to believe that the Board’s decision was mostly subjective and dismissive.  Correcting his military record and getting recognition for what he did in the Republic of Korea is very important to him.

j.  He asserts that he was indeed wounded by the enemy and that his tank 
commander and platoon leaders were witnesses to the events.  He asks that the Board reopen his case and give a thorough review to include contacting the witnesses.  He also requests copies of the documents which the Board used in consideration of the original application.  

3.  The applicant provides no supporting documentation.



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 AR20080008930, on 24 July 2008.

2.  The applicant does not provide any new evidence.  However, he does offer new argument which warrants reconsideration by the Board.

3.  The evidence used in the original board proceedings was limited to those documents provided by the applicant, upon which a partial reconstruction of his records was made.

4.  Army Regulation 15-185 (Army Board for Correction of Military Records) provides, in pertinent part, that the ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  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. 

5.  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.  The applicant argues, in essence, that just because the record is not available does not mean that he was not wounded or that he was not awarded the Purple Heart.  While the applicant is correct in his argument, the Board must base its findings on the available evidence.    

2.  The applicant explains that he was not listed in the casualty file because he was rushed back into combat.  While the reason is understandable, the situation, as described by the applicant still does not provide positive evidence showing that he was treated by medical personnel for a wound sustained as the result of hostile action.

3.  The applicant believes that since his statement of how his tank commander rendered him medical assistance was entered into the original proceedings, the Board accepted his account of the events as fact.  In fact, the original proceedings did present all of the evidence available including the applicant’s own statement.  Unfortunately, there is no available evidence to corroborate his statement, and even if there were, it would not meet the regulatory requirements for award of the Purple Heart because his wounds must have been treated by medical personnel and have been made a matter of record.

4.  The applicant insists that the Board contact his former tank commander, platoon leader, and platoon sergeant to obtain corroborating statements.  The Board is not an investigative body.  The burden of proof rests with the applicant.

5.  The applicant’s desire to know what documents were used by the Board to make its determination is understandable.  The proceedings indicate that there were records remaining in a reconstructed file; and that those records were sufficient to conduct a fair and impartial review.  However, his case was actually decided on the documents that he had provided, which provided the basis for partially reconstructing his records.

6.  The applicant is of the opinion that the Board’s decision was mostly subjective and dismissive.  It is most unfortunate that the original proceedings left him with this impression.  The Board is most appreciative of the service our veterans have provided to our country.  It does not take lightly their concerns about that service.

7.   In view of the above, the applicant’s request should be denied.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20080008930, dated 24 July 2008.


								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)                                         AR20070016793



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080015119



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1