IN THE CASE OF:
BOARD DATE: 17 February 2010
DOCKET NUMBER: AR20090014607
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, in effect, that he was in the infantry during the Korean War and he was shot in the lower back and neck with shrapnel and his eardrums busted from mortar rounds. He contends that at that time they just patched you up and you stayed in the field. He also indicates that the shrapnel pieces were removed in the 1980s and his scar still gets infected.
3. The applicant provides a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States); a Department of Veterans Affairs (DVA) Statement in Support of Claim; a Board of Veterans' Appeals decision; a DVA Benefits Increased letter, dated 29 December 2008; and a letter, dated
20 October 2009, from a Member of Congress 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants 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 applicants 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. The applicant was inducted into the Army of the United States on 6 March 1951. He served as an infantryman in Korea and was honorably discharged on
5 December 1952.
4. The applicant's DD Form 214 does not show the Purple Heart as an authorized award. Item 29 (Wounds Received as a Result of Action with Enemy Forces) on his DD Form 214 shows the entry "None."
5. There are no orders for the Purple Heart in the available records.
6. The applicant's name does not appear on the Korean Casualty Roster.
7. In support of his claim, the applicant provided a Board of Veterans' Appeals decision, dated 23 December 2008, which shows his claim for entitlement to service connection for residuals of shrapnel wounds to the back and neck was granted in September 2008. This decision also states that an initial compensable disability rating for service-connected bilateral hearing loss prior to 8 July 2008 was denied by the Board and that an increased disability rating of 20 percent for service-connected bilateral hearing loss from 8 July 2008 was granted subject to the applicable criteria governing the payment of monetary benefits.
8. 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 military personnel, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
There are no orders for the Purple Heart in the available records. In the absence of orders, the DVA documentation provided by the applicant is not sufficient as a basis for award of the Purple Heart. Regrettably, there is insufficient evidence on which to amend his DD Form 214 to show the Purple Heart.
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) AR20090014607
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