IN THE CASE OF:	  

		BOARD DATE:	    15 December 2011

		DOCKET NUMBER:  AR20110012139 


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 correction of his DD Form 214 (Report of Separation or Discharge – Armed Forces of the United States) to show the Purple Heart.

2.  The applicant states he was awarded the Purple Heart but it is not shown on his DD Form 214. 

3.  The applicant provides his DD Form 214 and a letter from the Department of Veterans Affairs (VA).

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 to the Board 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.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant's DD Form 214 shows he was inducted into the Army of the United States on 28 November 1952.  This form also shows he held an artillery specialty at the time of separation and that his most significant duty assignment (i.e., last duty assignment) was with B Battery, 936th Field Artillery Battalion.

4.  His DD Form 214 further shows he completed 1 year, 9 months, and 21 days of creditable active military service, of which 1 year, 3 months, and 25 days was foreign service.  He was honorably released from active duty on 18 September 1954.

5.  Item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the Korean Service Medal with one bronze service star, United Nations Service Medal, National Defense Service Medal, and Good Conduct Medal.

6.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) of his DD Form 214 shows the entry "None."

7.  His reconstructed records do not contain orders awarding him the Purple Heart.  Additionally, his medical records are not available for review with this case and his name is not shown in the Korean Casualty File.

8.  His reconstructed records contain:

	a.  Department of the Army Adjutant General Office Form R-5013 (Admissions and Disposition Report for Overseas Hospitals), dated 25 January 1954, which shows he was admitted to the hospital for a non-battle injury on 30 December 1953.

	b.  Disposition Form, dated 22 January 1954, Subject: Physical Condition of [Applicant, grade, serial Number] which shows he was issued a temporary profile for a compound fracture to the tibia and that he was restricted from performing combat duty or any prolonged period of marching, drilling, standing, or jumping. 

9.  He submitted a letter, dated 21 December 1954, from the VA, advising him that he was awarded service-connected disability compensation for residuals of a rifle wound to the left knee, incurred during the Korean conflict. 

10.  The Purple Heart was established by General George Washington at Newburgh, NY, on 7 August 1782 during the Revolutionary War.  It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action.

11.  Army Regulation 600-8-22 (Military Awards) provides that 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.  

	a.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; and injury caused by vehicle or aircraft accident resulting from enemy fire.

	b.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: frostbite or trench foot injuries; heat stroke; food poisoning not caused by enemy agents; chemical, biological, or nuclear agents not released by the enemy; battle fatigue; disease not directly caused by enemy agents; accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; self-inflicted wounds, except when in the heat of battle and not involving gross negligence; post traumatic stress disorders; and jump injuries not caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required treatment by military medical personnel, and the medical treatment must have been made a matter of official record.

2.  One document in his file shows he suffered a non-battle injury and he was admitted to a hospital on 30 December 1953.  Another document shows he was issued a temporary profile for a compound fracture to the tibia and that he was restricted from performing combat duty or any prolonged periods of marching, drilling, standing, or jumping.  A third document he submitted (a VA letter) advised him that he was awarded service-connected disability compensation for residuals of a rifle wound to the left knee, incurred during the Korean conflict. 

3.  The VA does not establish a military member's entitlement to award of the Purple Heart.  Furthermore, although a VA record generally does not, by itself, establish entitlement to award of the Purple Heart, an applicant may submit a VA file as part of his or her overall evidence in support of this award.  

4.  Nowhere in his reconstructed records does it show he was wounded or injured as a result of hostile action or treated for such wounds or that his treatment was made a matter of official record.  There is no evidence in his reconstructed records and he did not provide any evidence that shows he was wounded or injured as a result of hostile action or treated for such wounds or that his treatment was made a matter of official record or that he was awarded the Purple Heart. 

5.  In the absence of official orders awarding him the Purple Heart or documentary evidence that shows he was wounded or injured as a result of hostile action and treated for those wounds, regrettably, there is insufficient evidence upon which to correct his DD Form 214. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X__ _  ___X_ __  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  



      _______ _  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)                                         AR20110012139



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ABCMR Record of Proceedings (cont)                                         AR20110012139



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