IN THE CASE OF:	  

		BOARD DATE:	  6 October 2011

		DOCKET NUMBER:  AR20110006776 


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 (PH). 

2.  The applicant states he should have received a PH for an injury he received in Korea in 1974.  

3.  The applicant provides two separate statements from a third-party witness 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 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 enlisted in the Regular Army on 21 December 1972, and was trained in and awarded military occupational specialty (MOS) 16J (Defense Acquisition Radar Crewman).  
3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Korea (ROK) 19 June 1973 through 18 August 1974.  Item 38 (Record of Assignments) shows that during his ROK tour he was assigned to Headquarters and Headquarters Battery (HHB), 2nd Battalion, 44th Air Defense Artillery (ADA) Regiment, performing duties in MOS 16J as an acquisition radar operator.  Item 40 (Wounds) is blank and the PH is not included in the list of awards contained in item 41 (Awards and Decorations).  

4.  The applicant’s Military Personnel Records Jacket (MPRJ) is void of orders or documents indicating he was wounded in action in the ROK.  It is also void of medical treatment records indicating he was ever treated for a combat-related wound.

5.  On 3 December 1974, the applicant was honorably released from active duty after completing 1 year, 11 months, and 13 days of active military service.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Report of Separation from Active Duty) he was issued at the time, as amended by a DD Form 215 (Correction to DD Form 214) issued on 6 February 2006, shows he earned the following awards during his active duty tenure:

* National Defense Service Medal
* Armed Forces Expeditionary Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar
* Korea Defense Service Medal
* Army Good Conduct Medal

6.  The applicant provides two third-party statements from the same individual who indicates he witnessed the events related to the applicant’s injury in the ROK in 1974.  This individual claims a vehicle with a large plastic tank circled their firebase spraying all vegetation.  He states the reason for the spraying was to get rid of vegetation around the firebase because a Korean farmer had penetrated the barbed wire around the compound.  The second statement indicates he was on guard duty with the applicant in May 1974 and observed a Korean citizen coming under the barbed wire of the compound.  He states the applicant reported this to the officer in charge who instructed them to apprehend the Korean citizen.  While chasing this man, the applicant got tangled up in the barbed wire and after the Korean was apprehended and brought to their bunker, the Criminal Investigation Division (CID) came and took him away.  The applicant 


was brought to the aid station and treated for cuts to his hand by the battle line surgeon who informed the applicant he would put him in for the PH.  

7.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards policy.  Paragraph 2-8 contains guidance on the PH.  It states the PH is awarded to members wounded in action.  It also states in order to award the PH there must be evidence of the wound for which the award is being made was received as a result of enemy action, the wound required treatment by medical personnel, and a record of the medical treatment was made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to be awarded the PH has been carefully considered.  However, by regulation in order to support award of the PH there must be evidence the wound for which the award is being made was received as a result of enemy action; that it required treatment by military medical personnel; and a record of this treatment must have been made a matter of official record.  

2.  The evidence of record fails to show the applicant was ever wounded as a result of enemy action.  The medical treatment records in his MPRJ fail to show he was ever treated for a combat-related wound.

3.  Item 40 of the applicant's DA Form 20 is blank which indicates he was never wounded in action.  The supporting statements provided by the applicant indicate he was injured when he got tangled up in barbed wire.  While he may have chasing a possible enemy at the time, there is insufficient evidence to show that person caused his injuries.

4.  As a result, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case. 

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)                                         AR20110006776



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ABCMR Record of Proceedings (cont)                                         AR20110006776



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