IN THE CASE OF:
BOARD DATE: 24 March 2011
DOCKET NUMBER: AR20100023599
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 to be awarded the Purple Heart.
2. The applicant states he was wounded in the right knee by rifle fire from a Polish National near Gelnhausen, Federal Republic of Germany (FRG), on 1 June 1975 and contends that it qualified for award of the Purple Heart because it was caused by hostile enemy action.
3. The applicant provides copies of:
* a letter from the U.S. Army Human Resources Command Awards and Decorations Branch informing the applicant he was not entitled to award of the Purple Heart
* a letter from the senior officer present the day he was wounded
* medical documents showing he was treated for a gunshot wound to his right knee
* his DD Form 214 (Report of Separation from Active Duty)
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. He enlisted in the Regular Army on 20 February 1973 for a period of 3 years. He completed basic training and advanced individual training as an engineer missile equipment mechanic and was transferred to Germany on 30 January 1974 for assignment to a Chaparral missile battery.
3. While on a detail to deliver munitions to the Bernbach Weapons Storage Area located on the outskirts of Gelnhausen, FRG, on 1 June 1975, the applicant was shot in the right knee by a drunken Polish National contract guard armed with an M-16 rifle. The applicant was treated for his wounds and remained in Germany. He was promoted to pay grade E-5 on 28 September 1975.
4. He departed Germany on 9 February 1976 and was transferred to Fort Jackson, South Carolina, where he was honorably released from active duty on 10 February 1976. He had served 2 years, 11 months and 21 days of active service and was awarded the National Defense Service Medal.
5. Army Regulation 600-8-22 (Military Awards) states 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 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.
DISCUSSION AND CONCLUSIONS:
1. While neither the sincerity of the applicant's claim nor the fact he was shot in the leg while stationed in Germany is in doubt, there is insufficient evidence to show he was wounded as a result of enemy action.
2. The evidence provided by the applicant clearly indicates the applicant was shot by a drunken Polish National contract guard employed by the Army and, while he may have seemed to be hostile at the moment, it does not meet the criteria of a hostile enemy force for the purpose of award of the Purple Heart. Accordingly, he is not entitled to award of the Purple Heart for the wound he sustained in Germany on or about 1 June 1975.
3. 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 failed to submit evidence that would satisfy this 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 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) AR20100023599
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ABCMR Record of Proceedings (cont) AR20100023599
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