BOARD DATE:	  24 May 2012

		DOCKET NUMBER:  AR20110022382 


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 for a wound he sustained to his left hand.

2.  The applicant states he was wounded by shrapnel while fighting in the Korean War in 1953.  When he was being treated for his wounds, he asked his commanding officer not to report his wounding to his parents who had suffered endlessly when his older brother was shot down during World War II.  He believes this is why he was not awarded the Purple Heart.  He states he served in Korea with Company B, 2nd Engineer Battalion, 23rd Infantry Regiment.  His company commander was Captain C____ K. B____.  They came under a heavy artillery barrage while working to mark a roadway.  A fragment cut his left hand to the bone.  His wounded hand was cleaned and stitched by a medic and he returned to his company.  When the stitches worked loose he would tighten them.  The wound took forever to heal, became infected, and he was treated for the infection.  After he was discharged his hand was examined by the Department of Veterans Affairs (VA) and he was granted a 10-percent disability.

3.  The applicant provides copies of his National Archives and Records Administration (NA) Form 13038 (Certificate of Military Service); a 
VA Form 21-4138 (Statement in Support of Claim); a letter from his older brother, dated 12 July 2011; the first page of his brother's VA Former Prisoner of War Rating Decision; a letter from the VA, dated 1 April 2009; a request for copies of his military records; a letter from the National Personnel Records Center (NPRC), dated 14 June 2011; and the April 1953 Command Report for the 2nd Engineer Battalion (declassified).

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 complete military records are not available for review.  A fire destroyed approximately 18 million service members' records at the NPRC in 1973.  His records were destroyed, lost, or seriously damaged in that fire.  However, sufficient documents are available to conduct a fair and impartial review of this case.

3.  The applicant was inducted into the Army of the United States and entered active duty on 5 August 1952.  He was honorably released from active duty as a sergeant on 5 May 1954.

4.  The applicant provides copies of:

* his NA Form 13038 – a substitute for a DD Form 214 (Report of Separation or Discharge) in those cases where there are no military records – typically as a result of the 1973 NPRC fire
* VA Form 21-4138 – a record of the applicant's narrative
* a 12 July 2011 letter from his older brother – relating that the applicant asked to not be awarded the Purple Heart because of the anguish their parents had endured when the older brother, a B-17 tail gunner, was shot down in Germany
* the first page of the older brother's VA Former Prisoner of War Rating Decision – indicating he filed his original claim in 2005
* a 1 April 2009 letter from the VA to him – notifying him of a 
10-percent service-connected disability rating for some unspecified condition
* a request for copies of his military records
* a 14 June 2011 letter from the NPRC – informing him that his records had been destroyed in the 1973 fire, but that the VA might have his medical records 
* the April 1953 Command Report for the 2nd Engineer Battalion – mentioning the captain who the applicant cited as his platoon leader and describing some hostile actions, but neither the applicant nor his company were reportedly involved

5.  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.  Unfortunately, there is no available evidence of record to show that the applicant was treated for a wound sustained in action against the enemy or as the result of enemy action.

2.  The NPRC reported that his medical records might have been lent to the VA, but apparently the applicant did not inquire.  We do not know what evidence the VA used to establish the applicant's disability rating.

3.  There is no documentation to support the applicant's contention and no rationale to support the implied conclusion that those alleged circumstances would warrant the requested relief.

4.  In view of the foregoing there is no basis for granting the applicant's request.

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 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)                                         AR20110022382



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ABCMR Record of Proceedings (cont)                                         AR20110022382



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