IN THE CASE OF:	  

		BOARD DATE:	  10 April 2012

		DOCKET NUMBER:  AR20110021919 


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.  The applicant states that he received two gunshot wounds (GSW) while in Korea.

3.  The applicant provided a copy of a printout from the Department of Veterans Affairs (VA) and a copy of his VA Form 21-4138 (Statement in Support of Claim).

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 was inducted into the Army of the United States on 4 December 1968.  He held an infantry military occupational specialty.  He served in Korea from 19 May 1969 to 5 November 1969.  He was assigned to Company B, 1st Battalion, 8th Infantry Regiment, 2nd Infantry Division.

3.  He was honorably released from active duty on 10 July 1970.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year, 6 months, and 24 days of creditable active military service, of which 6 months was foreign service.  

4.  His DD Form 214 does not show award of the Purple Heart.

5.  His records contain a copy of a Western Union Telegram, dated 25 October 1969, to the next of kin (NOK).  The telegram indicates that he was injured in Korea on 25 October 1969 while a passenger in a military vehicle on a military mission when the weapon on another vehicle accidently discharged.  He received gunshot wounds to his neck and left shoulder and was placed on the seriously ill list.

6.  His records contain another telegram, dated 27 October 1969, which informed the NOK that he was removed from the seriously ill list and that his condition was improving.

7.  His records contain a copy of his Standard Form 89 (Report of Medical History), dated 29 June 1970, which indicates he suffered a GSW.

8.  He provided a copy of a printout from the VA which indicated he was awarded a combined service-connected disability rating of 40 percent for residuals of GSW (left shoulder with fracture), myopia, hearing loss, tinnitus, and headaches.

10.  He provided a copy his VA Form 21-4138.  He indicated that he was stationed in Korea in 1969 on the Demilitarized Zone (DMZ) patrolling the border (infantry) for about 8 to 9 months.  He was a machine gunner on the back of a deuce and quarter (2 1/4 ton truck).  They were coming up the hill to where they were supposed to be stationed at when he got hit by sniper fire.  He was shot twice and later vaguely recalled waking up on a medevac chopper headed to the hospital. He remained in the hospital for about two weeks before returning to the states.  He was medically evacuated to Valley Forge General Hospital and remained there for about 9 months.  He was informed he would be awarded the Purple Heart; however, he never received it and was separated.  After his separation, he continued to remain alone and away from the crowd.

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.  It gives examples of injuries or wounds which clearly do not justify award of the Purple, to include accidents (to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's argument that he should be awarded the Purple Heart was carefully considered.  However, there is insufficient evidence to grant him relief in this case.

2.  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 personnel, and the medical treatment must have been made a matter of official record.

3.  There are no medical records available to show he was treated twice for wounds as a result of hostile action.  The VA printout failed to show his GSW was the result of enemy or hostile action.

4.  The evidence shows that he was injured in Korea on 25 October while a passenger in a military vehicle on a military mission when the weapon on another vehicle accidently discharged.  He received GSWs to his neck and left shoulder and was placed on the seriously ill list and later removed.  However, the regulation clearly states vehicular accidents and other accidental wounding not related to or cased by enemy action do not qualify for award of the Purple Heart.

5.  This action in no way diminished 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.  

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)                                         AR20110021919



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ABCMR Record of Proceedings (cont)                                         AR20110021919



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