IN THE CASE OF:	  

		BOARD DATE:	        03 FEBRUARY 2009

		DOCKET NUMBER:  AR20080015457 


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, that his request for award of three Purple Hearts be reconsidered.

2.  The applicant essentially states that his request for three Purple Hearts should be reconsidered based on information he recently received from the National Personnel Records Center (NPRC) and certain medical records that he obtained from the Department of Veterans Affairs (DVA) Medical Center in Albuquerque, New Mexico.  He also states, in effect, that the medical records from the DVA Medical Center in Albuquerque, New Mexico discuss the shrapnel and gun shot wounds that he received.  He further states that his award of the Bronze Star Medal and the Combat Infantryman Badge are sufficient to prove that he was in combat, and that the descriptions of his shrapnel and gun shot wounds are sufficient to prove that he was in fact wounded in combat.  

3.  The applicant provides a self-authored letter, dated 25 July 2008, an undated Privacy Act release form, a photocopy of his DVA Patient Data Card, information from the hospital admission cards created by the Office of the Surgeon General which shows that he was admitted to a medical facility on 8 August 1945 for urethritis, a letter, dated 4 July 2008, from the NPRC, a continuation page of a working copy of progress notes printed on 7 June 2007, and 10 pages of progress notes printed on 18 July 2008 in support of this application.  A Member of Congress also submitted a letter, dated 13 August 2008, on behalf of the applicant.


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 AR20070013941, on 15 April 2008.

2.  The self-authored letter, dated 25 July 2008, the undated Privacy Act release form, the photocopy of his DVA Patient Data Card, information from the hospital admission cards created by the Office of the Surgeon General which shows that he was admitted to a medical facility on 8 August 1945 for urethritis, the letter, dated 4 July 2008, from the NPRC, and the 10 pages of progress notes printed on 18 July 2008 are new evidence that will be considered by the Board.

3.  The applicant provided 10 pages of progress notes that were printed on 
18 July 2008.  These documents essentially show, in pertinent part, that during a compensation and pension examination on 23 January 2008, it was determined that the applicant had gun shot wounds on his upper left arm and right ankle and a shrapnel wound in the middle of his back.  It also described the history behind these wounds, and that his shrapnel wound to the middle of his back occurred while he was waiting in a chow line when a shell exploded and a fragment scraped tissue on his back.  It also stated that the applicant sustained a gun shot wound to his right ankle while parachuting, and a gun shot wound to his upper left arm when he grabbed a rifle barrel pointing into a room when a German pulled the trigger.  The progress notes show the examination was conducted, in part, to examine the applicant's non-service connected gunshot wounds and the residuals of shrapnel wounds.  The medical opinion portion of these progress notes also has an entry of "shrapnel wounds?"  An entry on the last page of these progress notes also essentially show that the pertinent evidence used was the applicant's personal history.

4.  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 been treated by military medical personnel, and the medical treatment must have been made a matter of official record.  Each approved award of the Purple Heart must exhibit all of the following factors:  wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire; the wound or injury must have required treatment by military medical personnel; and the record of medical treatment must have been made a matter of official Army records.  A physical lesion is not required, however, the wound for which the award is made must have required treatment by a medical officer and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.

5.  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.  This 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 that his request for award of three Purple Hearts should be reconsidered.

2.  The fact that the applicant served in combat during World War II is not in question.  However, his contention that the descriptions of his shrapnel and gun shot wounds are sufficient to prove that he was in fact wounded in combat was not found to have sufficient merit.  

3.  While the applicant's compensation and pension examination in January 2008 described the applicant's gun shot wounds to his right ankle and upper left arm and a shrapnel wound to his back, it appears that the information showing that he sustained these wounds in combat was based primarily, if not entirely, on information given by the applicant to a medical examiner.  Additionally, the progress notes from this examination show that it was conducted, in part, to examine the applicant's non-service connected (emphasis added) gunshot wounds and the residuals of shrapnel wounds.  Additionally, an entry of "shrapnel wounds?" was entered in the medical opinion portion of these progress notes, and serves to show that the medical examination did not establish that his wounds were sustained as a result of hostile action.  

4.  The applicant did not provide evidence that conclusively shows that he was granted service-connected compensation or pension for his alleged wounds received in action.  If, however, the DVA did in fact determine that his alleged wounds were service-connected, the evidence shows that it would have been a presumptive determination, as there is no evidence in the available records which show that the applicant was wounded or injured as a result of hostile action.  Additionally, while the DVA, in its own discretion, has the authority to implement a presumptive decision-making process for veterans, the regulation governing the ABCMR states that it will begin its consideration of each case with the presumption of administrative regularity based upon the evidence of record.  There is no evidence which shows that he was awarded the Purple Heart or wounded in action and treated by medical personnel and that the treatment was made a matter of official record.  The progress notes provided by the applicant which were prepared more than 62 years after his active duty service does prove, by itself or by a preponderance of the evidence, that he was wounded or injured as a result of hostile action.

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.  Regrettably, in view of the foregoing, there is insufficient basis for awarding him any Purple Hearts.

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 AR20070013941, dated 15 April 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)                                         AR20070013941



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ABCMR Record of Proceedings (cont)                                         AR20080015457



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