IN THE CASE OF:	  

	BOARD DATE:	  11 June 2008

	DOCKET NUMBER:  AR20070018389 


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 denial for award of the Purple Heart.

2.  The applicant states, in effect, that he requests award of the Purple Heart in accordance with paragraph 8-2b(2), Army Regulation 600-8-22 (Military Awards) for a hearing loss caused by an exploding artillery shell hitting a field telephone that he was using.  He believes awarding of the Purple Heart was overlooked and not considered at the time of his release from service.

3.  The applicant provides a copy of his separation physical and a copy of a Department of Veterans Affairs (DVA) Rating Decision, dated 28 August 1999.

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 AR20050009666, on 10 November 2005.  This decision denied the applicant award of the Purple Heart because there was no corroborating evidence in the applicant's records which showed that he sustained his injury as a result of hostile action or that he was treated by a medical officer for his injury.  Although his separation medical examination showed he had "defective hearing bilateral, enemy action, enemy shell, February 1945, Luxembourg," it also indicated he received no treatment for the injury.

2.  The applicant's official records were not available for review when the ABCMR made its previous decision.  He was advised that a fire at the National Personnel Records Center (NPRC) in 1973 destroyed approximately 18 million service members' records and his record was believed to have been lost or destroyed in the fire.  However, NPRC, Preservation Branch, has now provided a copy of his original records in photocopied form.  As such, his official records, to include his available service medical records (SMRs), were available for review.  

3.  The applicant's WD AGO Form 53-98 (Military Record and Report of Separation – Certificate of Service) shows he entered active duty on
30 November 1942 in military occupational specialty (MOS) 2162 (Operations and Training Staff Officer).  This form also shows he was assigned to the 319th Infantry Regiment while he served in the European-African-Middle Eastern Theater from 7 July 1944 through 9 September 1945.

4.  There is no evidence in the applicant's official record or SMRs to show he sustained injuries as a result of hostile action or that he was treated for wounds sustained as a result of hostile action.

5.  The applicant's separation medical examination, dated 27 September 1945, was reviewed previously.  This document shows in Item 12 (Medical History) the entries " WOUNDS OR INJURIES:  Defective hearing bilateral, enemy action, enemy shell, February 1945, Luxembourg, no treatment."  

6.  The applicant provided a copy of his DVA Rating decision, dated 27 August 1999, showing that he is service connected for a defective hearing loss and tinnitus.  This is new evidence and was not previously reviewed.

7.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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 military medical personnel, and the medical treatment must have been made a matter of official record.  This regulation further states that there is no time limit on submission of requests for award of the Purple Heart.

8.  Paragraph 2-8b(2) of Army Regulation 600-8-22 provides, in pertinent part, that a wound is defined as an injury to any part of the body from an outside force or agent.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests reconsideration of his denial for award of the Purple Heart claiming entitlement under the provisions of Paragraph 2-8b(2) of Army Regulation 600-8-22.

2.  Although the applicant's separation medical examination shows that he sustained a bilateral hearing loss as a result of enemy action, there is no corroborating evidence in the applicant's records which show that he sustained the hearing loss as a result of hostile action or that he was treated by a medical officer for such injuries.  Indeed, the examiner indicates that the applicant received no treatment at the time of his injury.  

3.  Entitlement to the Purple Heart does not necessarily require a physical lesion; 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.  The applicant does not meet the regulatory requirement for award of the Purple Heart because he received no contemporaneous medical treatment for his injury and treatment for his injury was not made a matter of official record at the time.  

4.  The applicant provided evidence that the DVA has granted him service connection for his bilateral hearing loss and tinnitus.  The fact that the DVA, in its discretion, has awarded service connection for the applicant’s hearing condition is a prerogative exercised within the policies of that agency.  It does not, in itself, establish entitlement to award of the Purple Heart.  

5.  Based on the above, the applicant has provided insufficient evidence to overturn the prior decision to deny him award of the Purple Heart.  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 did not submit any evidence that would satisfy this requirement and is, therefore, not entitled to award of the Purple Heart based on the available evidence.  The denial of this award does not diminish the value of the applicant's service.










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 to amend the decision of the ABCMR set forth in Docket Number AR20050009666, dated 10 November 2005.



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       _    _______   ___
       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)                                         AR20070018389





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ABCMR Record of Proceedings (cont)                                         AR20070018389



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