IN THE CASE OF:	

		BOARD DATE:	       4 AUGUST 2009

		DOCKET NUMBER:  AR20090004138 


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, the spouse of a deceased former service member (FSM), requests reconsideration of her previous request that the DD Form 214 (Report of Separation from the Armed Forces of the United States) of the FSM be corrected to include the award of the Purple Heart.

2.  The applicant states, in effect, that the Army Board for Correction of Military Records (ABCMR) Record of Proceedings that she received quoted the regulation then in effect for award of the Purple Heart.  She states that she believes that the documentation that she now submits proves the FSM's entitlement to award of the Purple Heart.  She states that the ABCMR Record of Proceedings also states that her late husband was a non-battle casualty and that the Western Union Telegram that she receives states that he was "injured in action."  She states that since the Army’s records were destroyed in a fire they cannot possibly be complete. 

3.  The applicant provides a Western Union Telegram, dated 16 August 1951; a Western Union Telegram, dated 6 July 1951; page 3 of the FSM’s VA Form
8-526 (Medical Information); a copy of FL 8-88 (VA Award of Disability Compensation or Pension), dated 17 June 1952; a letter from the VA Regional Office, Detroit, Michigan, addressed to the State Adjutant General, dated
28 January 1952; a copy of the applicant's Marriage License; and a copy of the FSM’s Certificate of Death.



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 ABCMR in Docket Number AR20080012878, on 22 January 2009.

2.  The FSM’s military records are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the FSM’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case

3.  After completing 2 years of prior active enlisted service in the Regular Army (RA) the FSM entered active duty on 24 October 1950.

4.  The available records show that on 1 July 1951, the FSM incurred a compound fracture of his right mandible after his vehicle was forced off the road, pinning him underneath.  The available records also show that the Chief, Casualty Branch, was notified that the FSM’s injury was determined to be a “non-battle casualty.”

5.  The Western Union Telegram, dated 16 July 1951, that the applicant submits, is from the FSM informing the applicant that he was in the hospital and that his injury was not serious.

6.  The Western Union Telegram, dated 16 August 1951, that the applicant submits, shows that she was notified that the FSM was slightly injured in action in Korea on 1 July 1951.  The telegram shows that he was evacuated to Tripler Army Hospital in the territory of Hawaii.

7.  Page 3 of the FSM’s VA Form 8-526 shows that he was hospitalized from 1 July 1951 until an unspecified date in November 1951 due to a jaw injury.

8.  The FSM was released from active duty (REFRAD) and he was transferred to the Enlisted Reserve Corps on 27 November 1951.  At the time of his REFRAD he was furnished a DD Form 214 showing that he was awarded the Korean Service Medal.  However, his DD Form 214 does not contain an entry that shows that he received wounds as a result of hostile action while he was in the Army.


9.  The Korean Casualty List does not show the FSM’s name.

10.  The FL 8-88 form that the applicant submits shows that on 17 June 1952, the FSM was notified that he was awarded a 60 percent service-connected disability rating due to "scars facial, neck, and lower lip, jaw condition, right side of head injury with muscle condition."

11.  In the application to this Board, dated 14 July 2008, the applicant requested that she be issued a DD Form 215 (Correction to DD Form 214) to include all the awards to which the FSM was entitled, including the award of the Purple Heart.  On 22 January 2009, the Board granted partial relief of her request by recommending the FSM’s DD Form 214 be amended to add the National Defense Service Medal, United Nations Service Medal, Republic of Korea War Service Medal and one bonze service star to be affixed to his already-awarded Korean Service Medal.  However, the Board recommended denial of that portion of her application pertaining to award of the Purple Heart.

12.  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 contends that the new evidence that she submits in support of her request for reconsideration is proof that the FSM is entitled to award of the Purple Heart.

2.  The applicant contentions have been noted and her new supporting documents have been considered.  However, they are not sufficiently mitigating to change the Board’s original decision to deny relief for award of the Purple Heart.

3.  Although the Western Union Telegram, dated 16 August 1951, shows that the FSM was injured in action and evacuated to the hospital, it does not state that his injuries were the result of hostile action.  As stated, his records show that he was injured after his vehicle was forced off the road, pinning him underneath.  The available records also show that the Chief, Casualty Branch, was notified that the FSM’s injury was determined to be a “non-battle casualty.”

4.  The Board does not dispute that the FSM sustained an injury on 1 July 1951; however, his reconstructed records do not show that his injuries were sustained as a result of hostile action.  Therefore, he does not meet the criteria contained in the applicable regulation for award of the Purple Heart.
5.  In regards to the applicant’s contentions regarding the completeness of the FSM’s records, while his records are not complete, sufficient documents are available for a thorough review in the FSM’s case.

6.  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 has failed to submit evidence that would satisfy this requirement.

7. In view of the foregoing, there is no basis for granting the applicant's request.

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 AR20080012878, dated 22 January 2009.



      ________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)                                         AR20090004138



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ABCMR Record of Proceedings (cont)                                         AR20090004138



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