BOARD DATE:	  2 September 2010 

		DOCKET NUMBER:  AR20100009643 


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 Medal of Honor and Purple Heart.

2.  The applicant states the Department of Veterans Affairs Lincoln Regional Office determined he is entitled to service-connected compensation of 70 percent for injuries he suffered while performing peacetime and combat missions during the Gulf War Era.  He contends he has been suffering since he got out of the Army.

3.  The applicant provides a copy of the Department of Veterans Affairs rating decision, dated 3 February 2010.

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 record shows he enlisted in the Regular Army and entered active duty on 2 November 1988.  He was trained in and awarded military occupational specialty 12B (Combat Engineer).  The highest rank/grade he held while serving on active duty was sergeant/E-5.  On 28 October 1992, the applicant was honorably released from active duty and transferred to the 244th Support Center, Stuttgart, Germany, to complete his Reserve obligation.

3.  His medical records are not available for review with this case and there is no evidence in his records showing he was:

* ever recommended for or awarded the Medal of Honor
* wounded or injured during his military service
* issued orders awarding him the Medal of Honor or Purple Heart

4.  He provides a copy of his Department of Veterans Affairs claim determination with the following disability rating:

* 10-percent rating for service-connected depressive disorder
* 60-percent rating for eczema/dermatitis

5.  Army Regulation 600-8-22 (Military Awards) states:

	a.  The Medal of Honor is awarded by the President in the name of Congress to a person who, while a member of the Army, distinguishes himself or herself conspicuously by gallantry and intrepidity at the risk of his or her life above and beyond the call of duty while engaged in an action against an enemy of the United States.  The deed performed must have been one of personal bravery or self-sacrifice so conspicuous as to clearly distinguish the individual above his or her comrades and must have involved risk of life.  Incontestable proof of the performance of the service is required.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

	b.  The Purple Heart is awarded for a wound sustained in action against an enemy or 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.

6.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part, it states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  It is important that information entered on the form should be complete and accurate.

7.  Title 10, U.S. Code, section 1130, provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration.  Based upon such review, the Secretary shall determine the merits of approving the award.

8.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to U.S. Army Human Resources Command, AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  The unit must be clearly identified, along with the period of assignment and the recommended award.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request.  The burden and costs for researching and assembling supporting documentation rest with the applicant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have his record corrected to show he was awarded the Medal of Honor and Purple Heart was carefully considered; however, there is insufficient evidence to grant relief.

2.  The record is void of any orders or other documents confirming the applicant was ever recommended for or awarded the Medal of Honor by proper authority.

3.  Further, he provided no evidence to show he was wounded or injured as a result of hostile action during his period of military service.  The evidence of record contains no orders or other documents confirming he was wounded or injured as a result of his participation in direct or indirect combat.

4.  Absent corroborating evidence confirming his contention, the regulatory burden of proof necessary to support award of the Medal of Honor and the Purple Heart has not been satisfied in this case.

5.  While the available evidence is insufficient for awarding the applicant a Medal of Honor, this in no way affects his right to pursue his claim for the Medal of Honor by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

6.  The applicant is advised that this action is based solely on the lack of sufficient documentation and in no way reflects a prejudicial or negative opinion regarding his claim.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices he made in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

7.  In view of the foregoing, there is no basis for granting the requested relief.

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)                                         AR20100009643



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)