IN THE CASE OF:	  

		BOARD DATE: 	        18 June 2009

		DOCKET NUMBER:  AR20090003936 


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 (PH). 

2.  The applicant states, in effect, that after learning of many changes to the awards regulation, specifically, Executive Order 12464, dated 23 February 1984, which authorized award of the PH as a result of terrorist attackers or while serving as part of a peacekeeping force subsequent to March 28, 1973, he is submitting his request for award of the PH.  He states he was involved in an incident while serving in the Republic of Korea (ROK) in 1979.  He claims that while assigned to Company B, 1st Battalion, 9th Infantry Regiment at Camp Greaves, ROK, he was involved in an incident inside of North Korea on 
7 December 1979, which resulted in the wounding of him and two other Soldiers and the killing of one Soldier.  He further states he received the Soldier's Medal for this incident, and now after learning of the changes with regard to the above mentioned Executive Order, he feels he should have been awarded the PH for the wounds he received during this incident. 

3.  The applicant provides copies a self-authored statement, extract of Executive Order 12464, medical treatment record for an un-named individual, his Soldier's Medal Certificate with citation, and a 19 December 1979 "Pacific Stars and Stripes – Korea Edition" newspaper article in support of his application. 

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 during the period in question are not available for the Board to review.  This case is being considered using primarily the applicant's DD Form 214 (Report of Separation from Active Duty).

3.  The applicant’s DD Form 214 shows he enlisted in the Regular Army (RA) and entered active duty on 28 December 1976.  Item 11 (Last Duty Assignment and Major Command) confirms he was assigned to Company A, 1st Battalion, 
38th Infantry, 2nd Infantry Division, while serving in Korea.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he earned the Army Commendation Medal during this period of active duty service.  The PH is not included in item 26.  

4.  The applicant provides a copy of a medical treatment record, dated
8 December 1979, which indicates an individual had received shrapnel wounds to both hands and face.  This record fails to identify the name of the person injured and does not confirm that these injuries were sustained as a result of enemy or hostile action.

5.  The applicant also provides a copy of his Soldier's Medal Certificate with citation.  This document shows the applicant was awarded the Soldier's Medal for distinguishing himself by heroism above and beyond the call of duty on 
7 December 1979, while on a civil police patrol in the demilitarized zone near Pan Mun Jom [Panmunjom], ROK.  It indicates the patrol became disoriented in heavy fog and crossed into an unmarked minefield.  In the resulting explosions, one Soldier was killed and two were injured.  However, the applicant distinguished himself by voluntarily risking his life by moving forward through the extremely dangerous minefield to administer life-saving first aid, and by carrying a critically-injured Soldier to safety.  

6.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  It states, in pertinent part, that the PH is awarded to any member who has been wounded or killed in action.  The awards regulation defines a wound as an injury to any part of the body from an outside force or agent sustained under conditions defined by this regulation.  In order to support awarding a member the PH, it is necessary to establish that the wound for which the award is being made was received as a direct result of, or was caused by enemy action, that the wound required treatment by medical personnel, and a record of the treatment must have been a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH based on wounds he sustained while serving in the ROK was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, in order to award the PH it is necessary to establish that the wound for which the award is being made was received as a result of enemy action, that it required treatment by military medical personnel, and this medical treatment must have been made a matter of official record.  

3.  Although the applicant's record shows that the incident in question did take place, there is no evidence that the medical treatment record he provides confirming treatment for shrapnel wounds pertains to him, or that the wounds were the result of enemy action.  

4.  Further, because the incident is well documented, it is clear that the responsible command authorities at the time determined the appropriate recognition for the applicant's actions during this incident was a Soldier's Medal. As a result, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case and it would not be appropriate or serve the interest of all those who served and faced similar circumstances to grant the requested relief in this case.  

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 for correction of the records of the individual concerned.



      _______ _   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)                                         AR20090003936



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ABCMR Record of Proceedings (cont)                                         AR20090003936



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