IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100010431 


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 and the Prisoner of War Medal.  In addition, he requests his duties as a military policeman be added to his DD Form 214 (Report of Separation from Active Duty) with an effective date of 6 September 1977.

2.  The applicant states he was "clipped in his helmet by an M-60 machine gun."  It was an accident and no medical treatment was given.  He also states he was attacked by hostile combatants/terrorists/and or anarchist.  He states the report by the Department of Defense says he had a motorcycle accident.  He admits that, yes he was on a motorcycle, "but it was an act of hostility that pre-empted the situation."

3.  The applicant provides copies of:

* an email, dated 20 May 2003, from a retired master sergeant
* two of his DA Forms 2166-5 (Enlisted Evaluation Report) (EER)
* his DD Form 214 
* his Disabled Persons Parking Permit Application for the State of Hawaii

4.  The applicant stated he provided letters from his treating neurosurgeon.  However, these letters were not with his application when reviewed.


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 personnel records show he enlisted in the Regular Army on 7 September 1973 for a period of 4 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty (MOS) of 11B (Infantryman).

3.  The applicant was assigned to the 28th Ordnance Company, 15th Ordnance Battalion in Germany from 15 January 1974 to 31 August 1977.  His assigned duties included security guard, senior military policeman, and senior security guard.  However, there are no orders changing his MOS.

4.  On 6 September 1977, the applicant was released from active duty.  He had completed 4 years of active service that was characterized as honorable.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not show he was awarded the Purple Heart or the Prisoner of War Medal.

5.  The EER's submitted by the applicant show his duty position title as Senior Military Policeman and Military Policeman.  However, his primary MOS on both reports show 11B.

6.  The email, dated 20 May 2003, from a retired master sergeant appears to have been sent in support of another claim being submitted by the applicant.  However, the email does provide statements concerning the applicant being grazed by a bullet and a motorcycle accident.

	a.  The master sergeant stated that while the unit was in a simulated alert there was an accidental weapons discharge and the applicant was grazed by a bullet striking his helmet.  He did not personally witness the incident but to his recollection the applicant's helmet was not penetrated.
	b.  The master sergeant stated his unit was frequently in a heightened security posture due to terrorist/anarchist groups.  After one such incident in increased security measures the applicant was released from duty and had not been seen for 3 or 4 days.  The sergeant stated the applicant was found later in a U.S. Air Force Hospital in Wiesbaden, Germany where he had been admitted with serious injuries from a motorcycle crash.  

7.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded to any member who, while serving under competent authority in any capacity with one of the Army Services, has been wounded or killed or who has died or may hereafter die after being wounded:

	a.  In any action against an enemy of the United States;
      
	b.  In any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged;

	c.  While serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party;

	d.  As a result of an act of any such enemy of opposing armed forces;

	e.  As a result of an act of any hostile foreign force;

	f.  After 23 March 1973, as a result of an international terrorist attack against the United States or a foreign nation friendly to the United States, recognized as such an attack by the Secretary of the Army, or jointly by the Secretaries of the separate armed services concerned if persons from more than one service are wounded in the attack;

	g.  After 28 March 1973, as a result of military operations while serving outside the territory of the United States as part of a peacekeeping force; or

	h.  Members killed or wounded by friendly fire.
      
Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by a medical personnel, and the medical treatment must have been made a matter of official record.


8.  Army Regulation 600-8-22 states the Prisoner of War Medal was authorized on 8 November 1985 and is awarded to individuals who in past armed conflicts were taken prisoner or held captive after 5 April 1917.  The Prisoner of War Medal is to be issued only to those U.S. military personnel and other personnel granted creditable U.S. military service who were taken prisoner and held captive:

* while engaged in an action against an enemy of the United States
* while engaged in military operations involving conflict with an opposing foreign force
* while serving with friendly forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party
* by foreign armed forces that are hostile to the United States, under circumstances which the Secretary concerned finds to have been comparable to those under which persons have generally been held captive by enemy armed forces during periods of armed conflict

9.  Army Regulation 635-5 (Separation Documents) states the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the Purple Heart and the Prisoner of War Medal.  He also contends his duties as a military policeman should be added to his DD Form 214.

2.  The email from the master sergeant specifically stated the applicant's helmet was grazed by a bullet that was accidently fired.  He stated the bullet did not penetrate the helmet.  The applicant himself stated the wound did not require medical treatment.

3.  There is no evidence available to show the applicant was wounded by an enemy of the United States, an opposing armed force of a foreign country, or a hostile foreign force and that the wound required medical treatment.  Therefore, the applicant is not entitled to the Purple Heart.

4.  The applicant contends the crash was the result of terrorists.  However, he has provided no evidence to support his contention.  There is no evidence the applicant was taken prisoner and held captive.  Therefore, there is insufficient evidence to justify the award of the Prisoner of War Medal in this case.

5.  The DD Form 214 is a brief summary of a Soldier's period of active duty.  It is not intended to provide specific duties at specific duty assignments during a Soldier's period of active service.  Therefore, it would be inappropriate to generate an entry concerning the applicant's military duty assignments and duties assigned.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

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)                                         AR20100010431





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ABCMR Record of Proceedings (cont)                                         AR20100010431



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