IN THE CASE OF:	 

		BOARD DATE:	  3 February 2009

		DOCKET NUMBER:  AR20080017426 


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.  He also requests that Item 29 (Wounds Received as a Result of Action With Enemy Forces) of his 
DD Form 214 (Report of Separation from the Armed Forces of the United States) with an effective date of 9 September 1952 be corrected to show "shrapnel wound to left arm."

2.  The applicant states there were bombs one mile from Heart Break Ridge.  He states that a ruling from the Board of Veteran's Appeals (BVA) determined his wound is service-connected.

3.  The applicant provides, in support of his application, copies of his 
DD Form 214, his BVA ruling, a Department of Veterans Affairs (VA) Rating Decision, and a letter from the VA.

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 records were lost or destroyed in a fire at the National Personnel Records Center in 1973.  The record available to the Board was provided by the applicant and is sufficient for the Board to conduct a fair and impartial review of this case.  The primary record available to this Board is the applicant’s DD Form 214.

3.  The applicant was inducted on 14 November 1950.  He was released from active duty on 9 September 1952.  He had completed 1 year, 9 months, and 
26 days of active service that was characterized as honorable.

4.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 shows he was awarded or authorized the Combat Infantryman Badge, the Korean Service Medal with two bronze service stars, and the United Nations Service Medal.

5.  Item 28 (Last duty assignment and major command) of the applicant's 
DD Form 214 shows his last assignment as the 27th Infantry Regiment.

6.  Item 29 of the applicant's DD Form 214 contains the entry, "NONE."

7.  The applicant's name does not appear on the National Archives Korean War Casualty File. 

8.  BVA Docket No. 06-24 847, dated 22 August 2008, granted the applicant service connection for residuals of a shrapnel wound to the left arm.  A statement contained in this decision indicates the applicant's service treatment records were destroyed in the July 1973 fire at the National Personnel Records Center.

9.  VA Rating Decision, dated 10 September 2008, granted the applicant service connection for residuals of a shrapnel wound to his left arm as ordered by the BVA.

10.  According to Wikipedia Encyclopedia, the battle of Heartbreak Ridge was a month-long battle in the Korean War fought between 13 September and 
15 October 1951 by all three of the 2nd Infantry Division's infantry regiments.  These regiments consisted of the 9th, the 38th, and the 23rd Infantry Regiments with the brunt of the combat borne by the 23rd and the 9th Infantry Regiments.

11.  Special Regulation 615-360-1 (Separation of Enlisted Personnel), in effect at the time, provided that each wound received as the result of enemy action was to be entered chronologically in item 29 of the DD Form 214.  The date and place of action was also to be entered if available.

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart was awarded to any member of an Armed Force or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. armed services had been wounded, killed, or who had died as a result of 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 a medical officer, and the medical treatment must have been made a matter of official record.

13.  Title 38, U. S. Code, permits the VA to award compensation for a medical condition that is determined to have been incurred in or aggravated by active military service.  The VA, however, is not required by law to determine whether a disability was a result of hostile action.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's unit, the 27th Infantry Regiment, is not listed as a participating unit in the Battle of Heartbreak Ridge.

2.  The VA determined the applicant's residuals of shrapnel wounds were service-connected.  However, this determination merely shows the applicant's wounds were incurred while in service.  The determination does not show, nor is it intended to show, that the applicant's shrapnel wounds were a result of a hostile action.

3.  The applicant's military personnel records and service medical records were destroyed in the 1973 fire at the National Personnel Records Center.  He is not listed on the National Archives Korean War Casualty File as having been wounded as a result of hostile action. 

4.  In the absence of military records which show that the applicant was wounded or treated for wounds resulting from hostile action, there is insufficient evidence upon which to base award of the Purple Heart in this case.

5.  Only those wounds received as the result of enemy action were entered in item 29 of the DD Form 214 during the period of the applicant's service.  There is insufficient evidence to show the applicant's shrapnel wound to his left arm was as a result of enemy action.  Therefore, the entry in item 29 of his DD Form 214 is determined to be correct.

6.  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 that requirement.

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)                                         AR20080017426





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080017426



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1