BOARD DATE: 8 November 2011
DOCKET NUMBER: AR20110010177
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 that he be awarded the Purple Heart.
2. The applicant states he was wounded at Pork Chop Hill in July 1953 "when a "blast blew me up and into a trench, resulting in permanent damage to his left knee." He states that he experienced a loss of hearing for 2 days and he was shot in his right shoulder on 23 April 1953.
3. The applicant states the Department of Veterans Affairs (VA), Omaha, Nebraska, has all the records that are needed for the Board to make a decision.
4. The applicant provides a DD Form 214 (Report of Separation from the Armed Forces of the United States), a letter from the VA, and VA Progress Notes.
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 applicants 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 applicants 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 complete military records are not available for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973. It is believed that his records were lost or destroyed in that fire. This case is being considered based on the documentation he provided.
3. His DD Form 214 indicates:
a. he was inducted into the Army of the United States on 1 October 1952 and he served as an infantryman;
b. he was awarded the Korea Service Medal with two bronze service stars, National Defense Service Medal, United Nations Service Medal, and the Combat Infantryman Badge;
c. in item 29 (Wounds Received as a Result of Action with Enemy Forces) is annotated "None"; and
d. he was honorably released from active duty on 30 September 1954 and transferred to the U.S. Army Reserve.
4. There is no evidence in the available records showing he sustained injuries as a result of hostile action or that he received treatment for any such injuries. His name is not listed on the Korean War Casualty File.
5. He provides a letter from the VA that indicates he is receiving service connected disability compensation and VA Progress Notes that indicate he suffers from left knee, left hip, and low back conditions.
6. 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. There is no evidence in the available records and the applicant has not provided sufficient evidence that shows he sustained injuries as a result of hostile action or that he received treatment for injuries that were sustained as a result of hostile action.
2. He provides a letter from the VA that indicates he is receiving service connected disability compensation and VA Progress Notes that indicate he suffers from left knee, left hip, and low back conditions. However, these documents do not show he was wounded as a result of hostile action. Therefore, there is insufficient evidence to confirm his entitlement to the Purple Heart.
3. The applicant has the burden of proving that an error or injustice occurred by a preponderance of the evidence. The applicant may request reconsideration for award of the Purple Heart if he can obtain records that show he was injured as a result of hostile action, he was treated for those injuries, and the treatment was made a matter of official record.
4. Based on the foregoing, there is no basis to grant 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) AR20110010177
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RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20110010177
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