IN THE CASE OF:	  

		BOARD DATE:	  7 February 2012

		DOCKET NUMBER:  AR20110015907 


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 be awarded the PH for wounds he sustained in Korea during a firefight with North Korean Soldiers who had infiltrated into South Korea through the demilitarized zone (DMZ).  He claims he received shrapnel wounds to the shoulder.  

3.  The applicant provides a DA Form 8-274 (Medical Condition-Physical Profile Report) and third- party letters 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's record shows he was inducted into the Army of the United States, on 23 April 1968, and he was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He was advanced to specialist four (SP4)/E-4, on 14 February 1969, and this is the highest rank he held and served in on active duty.

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in Korea from 27 November 1968 through 20 December 1969.  the RVN from 15 December 1969 through 19 November 1970.  Item 38 (Record of Assignments) shows that during his Korea tour, he was assigned to Company C, 2nd Battalion, 9th Infantry Regiment, performing duties in MOS 11B as a personnel carrier driver.  

4.  Item 40 (Wounds) of the applicant's DA Form 20 is blank, and the PH is not included in the list of awards entered in item 41 (Awards and Decorations).  His record is void of any orders or other documents indicating he was ever awarded the PH by proper authority while serving on active duty.  It is also void of any documents showing he was wounded in action in Korea or that he was ever treated for a combat related wound by military medical personnel while serving in Korea.  

5.  The applicant’s Military Personnel Records Jacket (MPRJ) contains DA Form 8-274, dated 27 March 1969, that shows the applicant had a temporary (T) 
3 profile for the upper extremities as a result of a fragment wound left posterior shoulder.  The document provides no facts and circumstances related to the events that resulted in the fragment wound.  

6.  On 14 December 1969, the applicant was honorably released from active duty after completing 1 year, 7 months, and 22 days of active military service.  The DD Form 214 he was issued at the time does not include the PH in item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized).  Item 24 shows he earned the following awards during his active duty tenure:

* National Defense Service Medal
* Armed Forces Expeditionary Medal-Korea
* Expert Marksmanship Qualification Badge with Rifle Bar

7.  The applicant provides third-party statements from individuals who served with him in Korea.  These individual indicate the applicant relayed to them that he had received fragment wounds to his shoulder.  They provide no specific eye-witness account of the events during which the applicant was wounded.  


8.  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 that in order to award the PH there must be evidence 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 based on fragment wounds received in Korea has been carefully considered.  However, by regulation, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action.  Wounds received as a result of accidental explosions do not support award of the PH.  

2.  The evidence of record is void of any indication that the fragment wound that resulted in the applicant receiving a T3 profile was received as a result of enemy action.  There are no orders or other documents on file in the MPRJ that indicate the applicant was ever recommended for or awarded the PH by proper authority while serving on active duty which would have been expected had the fragment wound resulted from enemy action.  Further, item 40 of his DA Form 20 is blank, indicating he was never wounded as a result of enemy action, and the PH is not included in the list of awards in item 41.  

3.  Finally, the third party statements provided by the applicant provide information related to these individuals by the applicant and are not eye-witness accounts of the event resulting in the applicant being wounded.  Absent any evidence of record or independent evidence provided by the applicant confirming his fragment wound was received as a result of enemy action, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Therefore, there is an insufficient evidentiary basis to support granting 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)                                         AR20110015907



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ABCMR Record of Proceedings (cont)                                         AR20110015907



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