IN THE CASE OF:	  

		BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100012777 


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 reconsideration of his previous request to be awarded the Purple Heart.  As a new issue, he requests that he be awarded the Overseas Service Ribbon (OSR).

2.  The applicant states that while he has been unable to obtain copies of his medical records, he has obtained a notarized statement from the battalion surgeon who treated him for his wounds on 27 October 1983.  He goes on to state that the Standard Form 88 (Report of Medical Examination) he provides indicates the scars for those wounds.  He continues by stating that he should have been awarded the OSR for his tour of duty in Korea and a review of his officer evaluation reports (OER) will document his assignment to Korea.

3.  The applicant provides:

* a copy of his DA Form 4037 (Officer Record Brief (ORB))
* a copy of two OER's reflecting his assignment in Korea
* a notarized statement from a physician in California
* a copy of a Standard Form 88
* a copy of an OER reflecting his assignment to a ranger battalion at Fort Lewis, Washington

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090000973 on 28 April 2009

2.  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.

3.  During the previous review of the applicant's request for award of the Purple Heart (AR20090000973) the applicant provided an affidavit from a retired chaplain lieutenant colonel who states that he was invited to the ceremony that awarded the applicant an impact Army Commendation Medal and the Purple Heart for wounds received in Grenada.  He subsequently learned from the applicant's wife that the applicant declined the award of the Purple Heart.  The Board could find no orders or medical documentation to support the applicant's claim and denied his request for the award of the Purple Heart on 28 April 2009.

4.  The applicant now provides a statement from a civilian physician who claims that he was the battalion surgeon who treated the applicant for shrapnel wounds received on 27 October 1983 to the right arm and right torso during Operation Urgent Fury as new evidence.  The applicant also provides a copy of his medical examination indicating scars below left knee, left front shoulder, right arm bicep, right torso front and back above hip.  This is new evidence that will be considered by the Board.

5.  For reasons that are unknown at this time, the applicant's records are not available for review.  However, the evidence provided by the applicant reflects that he served a tour of duty in Korea that ended in 1980 and a tour of duty in Panama that ended in 1989.  There is no evidence to show that he was awarded the OSR for those tours.

6.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while 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.

7.  Army Regulation 600-8-22 also states that the OSR was established by the Secretary of the Army on 10 April 1981.  Effective 1 August 1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for the award for successful completion of overseas tours.  The award may be awarded retroactively to those personnel who were credited with normal overseas tour completion before 1 August 1981 provided they had an Active Army status on or after 1 August 1981.  Numerals are used to denote the second and subsequent awards of the OSR.

DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant's claim that he was wounded in Grenada on 27 October 1983 is not in doubt, there simply is not enough definitive evidence to substantiate his claim.

2.  In his previous request the applicant provided a statement from a retired chaplain who claims the applicant was awarded the Purple Heart in a ceremony at Fort Lewis, Washington, and he subsequently was informed that the applicant declined the award.  However, if such was the case, there would have been orders published which awarded him the Purple Heart and an award by this Board would amount to a duplication of the award.  The applicant has not provided orders which show that he was in fact awarded the Purple Heart or orders to show that it was later revoked.

3.  The applicant has now provided a statement from a civilian physician who claims he treated the applicant for his wounds on 27 October 1983.  However, the veracity of this statement 27 years after the fact cannot be confirmed.  Therefore, in the absence of substantiated evidence to show that he was treated and that the treatment was made a matter of record, there appears to be no basis to award him the Purple Heart at this time.

4.  However, the applicant provided sufficient evidence to substantiate his claim that he is entitled to award of the OSR.  The applicant completed two overseas tours of duty (Korea and Panama) and thus is entitled to be awarded the OSR with numeral 2.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  In regard to the applicant's new issue the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the OSR with Numeral 2 his records.

2.  In regard to the applicant's request for reconsideration for award of the Purple Heart, 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 to amend the decision of the ABCMR set forth in Docket Number AR20090000973 dated 28 April 2009.




      _____________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)                                         AR20100012777



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ABCMR Record of Proceedings (cont)                                         AR20100012777



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