IN THE CASE OF:	

		BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090013399 


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 he suffered hearing loss in Korea as a result of standing near guns during firing operations in 1952.  He claims this resulted in sustaining a high-frequency hearing loss, for which he now receives benefits from the Department of Veterans Affairs and combat-related special compensation.  He finally states that he was never awarded the PH and is now seeking a determination of his eligibility based on this injury.

3.  The applicant provides a self-authored statement and a medical document extract 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 record shows that after having prior military service, he enlisted in the Army and entered active duty in an enlisted status on 11 September 1950.  He continued to serve on active duty in this status until 23 March 1961, at which time he was honorably discharged to accept an appointment as a warrant officer (WO).

3.  On 24 March 1961, the applicant was appointed as a WO1 and continued to serve on active duty in this status until 22 October 1963, at which time he was honorably released from active duty in order to accept an appointment as a commissioned officer.

4.  On 23 October 1963, the applicant was appointed as a captain and remained serving on active duty in this status.  His DA Form 24 (Service Record) includes two entries in section 5 (Service Outside Continental United States) which show he served in Korea from 18 May 1952 to 28 March 1953 and in Indo-China from 22 March 1955 to 29 August 1956.  Section 8 (Wounds Received through Enemy Action) is blank and the PH is not included in the list of awards shown in section 9 (Medals, Decorations, and Citations).

5.  The applicant's military record contains a Standard Form 502 (Clinical Record/Narrative Summary), which shows he was admitted to the 6208th U.S. Air Force Hospital on 20 May 1955 and treated for aches in his left ear that persisted for 5 days and aches in his right ear that persisted for 2 days.  This document indicates he had no past history of ear aches and he was diagnosed with an "infection of external auditory meatus, diffuse, bilateral, organism unknown."  He was discharged from the hospital on 25 May 1955.

6.  A second Standard Form 502 on file shows that the applicant was readmitted to the hospital on 27 May 1955 because he experienced much pain to his left ear and it appeared to be worse with much swelling.  He received additional medical treatment to his left ear and he was discharged again on 2 June 1955.  Neither of the medical treatment forms on file give any indication that the applicant's ear condition was combat related or sustained as a direct result of enemy action.

7.  The applicant's record is void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty.  The record also is void of any medical treatment records that indicate he was ever treated for a combat-related wound or injury during his active duty tenure.

8.  On 30 November 1973, the applicant was honorably retired from active duty after completing a total of 23 years, 5 months, and 5 days of creditable active military service.

9.  The DD Form 214 (Report of Separation from Active Duty) issued to the applicant on 30 November 1973 shows he earned the following awards during his tenure on active duty:  Korean Service Medal with two bronze service stars, National Defense Service Medal with one oak leaf cluster (OLC), United Nations Service Medal, Army Good Conduct Medal with clasp, Meritorious Unit Emblem, Sharpshooter Marksmanship Qualification Badge with Carbine Bar, Vietnam Service Medal, Army Commendation Medal with one OLC, Armed Forces Reserve Medal, Republic of Vietnam (RVN) Campaign Medal, Joint Service Commendation Medal, Armed Forces Honor Medal First Class, and Meritorious Service Medal.  The PH is not included in this list of earned awards.

10.  The applicant's military record includes three previously issued DD Forms 214 that document his earlier periods of active duty service from 11 September 1950 through 24 August 1951, 25 August 1957 through 23 March 1961, and 24 March 1961 through 22 October 1963.  These documents do not include the PH in the list of awards entered and contain no entry indicating the applicant was ever wounded in action.

11.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH.  It states, in pertinent part, that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that the wound required treatment by medical personnel, and a record of this medical treatment must have been made a matter of official record.  Paragraph 2-8h contains a list of injuries that clearly do not justify award of the PH.  Included in this list are accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the PH because he suffered ear injuries as a result of standing near guns firing while serving in Korea in 1952 was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that it required medical treatment by military medical personnel, and a record of this treatment must have been made a matter of official record.  Further, injuries sustained as a result of accidents not related to or caused by enemy action clearly do not qualify for award of the PH.

3.  Section 8 of the applicant's DA Form 24 is blank, which indicates he was never wounded in action.  Further, there are no orders or other documents on file in his record that indicate he was ever recommended for or awarded the PH by proper authority or that he ever pursued award of the PH while he was on active duty.

4.  The medical treatment records provided by the applicant, while confirming he was treated for ear infections in 1957, fail to show his ear condition was received as a result of enemy action or was related to the 1952 incident in Korea he outlines.  As a result, absent any evidence confirming his ear problems were a direct result of or caused by enemy action, the regulatory burden of proof necessary to support award of the PH has not been satisfied 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)                                         AR20090013399



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ABCMR Record of Proceedings (cont)                                         AR20090013399



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