BOARD DATE:	  24 September 2009

		DOCKET NUMBER:  AR20090004386 


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 award of the Purple Heart.

2.  The applicant states that his records should be corrected to show that he received the Purple Heart for destruction of his right eye as a result of machine gun operation while he was in Germany in the spring of 1959.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and page one of a Department of Veterans Affairs (DVA) Rating Decision, dated 5 April 2005.

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 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 applicant’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.  With prior active and inactive enlisted and commissioned service, the applicant entered active duty as a U.S. Army Reserve (USAR) commissioned officer on 11 March 1957.

4.  The available records show that on 19 April 1959, the applicant was in Grafenwoehr, Germany, conducting familiarization firing on a .30 caliber machine gun and in an attempt to clear the weapon, it malfunctioned.  As the applicant raised the cover of the weapon, the round of ammunition in the chamber exploded, which resulted in an injury to his right eye.  He was hospitalized until 11 May 1959 when he returned to duty with a permanent (P-3) profile which precluded duty requiring normal binocular stereoscopic vision.

5.  The applicant, at his request, was honorably released from active duty on 31 March 1960, and he was transferred to the USAR Control Group (Reinforcement).
 
6.  The DD Form 214 that the applicant was issued at the time of his discharge shows that he was awarded the Parachutist Badge.  His DD Form 214 also shows “None” in item number 27 (Wounds Received as a Result of Action with Enemy Forces).

7.  A review of the available records does not show that the applicant was ever wounded as a result of hostile action by enemy forces while he was in the Army.

8.  The first page of the DVA Rating Decision that the applicant submitted shows that he was awarded a 30 percent service-connected disability rating for disfigurement area, right eye.  The effective date of his award is not reflected therein.

9.  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.  This regulation further provides examples of injuries or wounds which clearly do not justify award of the Purple Heart, which include accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by
enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart.

2.  His contentions have been noted and the documentation that he submitted has been considered during this review.  However, there is no evidence in the available records that shows that he was ever wounded as a result of hostile action by enemy forces while he was in the Army.

3.  The available records show that while in a training area in Germany, he was conducting familiarization in firing on a .30 caliber machine gun.  In an attempt to clear the weapon, it malfunctioned.  As the applicant raised the cover of the weapon, the round of ammunition in the chamber exploded, which resulted in an injury to his right eye.  This injury was not the result of hostile action by enemy forces; rather, it was as a result of an accident in a non-hostile environment.  Therefore, regrettably, he does not meet the criteria contained in Army Regulation 600-8-22 for award of the Purple Heart.

4.  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.

5.  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 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)                                         AR20090004386



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ABCMR Record of Proceedings (cont)                                         AR20090004386



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