IN THE CASE OF:	  

		BOARD DATE:	  13 December 2012

		DOCKET NUMBER:  AR20110011077 


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.

2.  He states he sustained a concussive injury while serving on active duty during the Korean War.  He recently read an article in the May 2011 Veterans of Foreign Wars (VFW) magazine that shows a Traumatic Brain Injury (TBI)/concussion is recognized as an injury for award of the Purple Heart. 

3.  He provides:

* Orders for the Bronze Star Medal
* His DD Form 214 (Report of Separation from the Armed Forces of the United States)
* An Honorable Discharge Certificate
* His Department of Veterans Affairs (VA) disability award letter
* An article from the VFW magazine

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 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 the applicant’s records were lost or destroyed in that fire.  However, the records provided by the applicant are sufficient to conduct a fair and impartial review of this case.

3.  His DD Form 214 shows he enlisted in the Regular Army on 4 February 1952 for a period of 3 years.  He was honorably released from active duty on
3 February 1955 and he was transferred to the U.S. Army Reserve to complete his remaining Reserve obligation.  The DD Form 214 he was issued at the time does not show in:

	a.  Item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) award of the Purple Heart; and

	b.  Item 29 (Wounds Received as a Result of Action with Enemy) he was wounded as a result of hostile action during his period of service.

4.  The applicant's name does not appear in the Korean War casualty listing.

5.  He provided a copy of general orders that show he was awarded the Bronze Star Medal for meritorious achievement in connection with military operations against an enemy of the United States on 15 May 1953.  This order does not indicate he sustained any wounds as a result of hostile action.

6.  The applicant also provided a copy of his VA disability award letter that shows he was awarded a 10 percent (%) service-connected disability rating percentage for bilateral hearing loss.  This letter also shows the applicant reported being involved in a combat situation in May 1953 in which his entire body was lifted up by the concussion of close rounds and then slammed back down to the ground.  He reported having ringing in his ears as well as a hearing loss at the time of the incident. 

7.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained 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 medical treatment, and the medical treatment must have been made a matter of official record.

8.  Military Personnel (MILPER) Message Number 11-125, issued by the U.S. Army Human Resources Command, Fort Knox, KY, dated 29 April 2011, informed all members of the Army that the Secretary of the Army had approved Army Directive 2011-07 (Awarding the Purple Heart).  The directive provides clarifying guidance to ensure the uniform application of advancements in medical knowledge and treatment protocols when considering recommendations for award of the Purple Heart for concussions (including mild traumatic brain and concussive injuries that do not result in a loss of consciousness).  This message does not change the standards for award of the Purple Heart for concussion injuries.  This policy is retroactive to 11 September 2001.

DISCUSSION AND CONCLUSIONS:

1.  He stated that he read in an article published by the VFW magazine that there were recent changes for award of the Purple Heart to Soldiers with TBI or a concussion.  His statement is confirmed by MILPER Message Number 11-125; however, this policy is only retroactive to 11 September 2001.

2.  The available records are void of documentation and the applicant has not provided sufficient evidence to show he was wounded or treated for wounds as a result of hostile action during his service in Korea.  The VA disability award letter and the orders awarding him the Bronze Star Medal are not sufficient evidence as a basis for an award of the Purple Heart.  

3.  Absent corroborating evidence, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20110011077



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ABCMR Record of Proceedings (cont)                                         AR20110011077



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