IN THE CASE OF:	  

		BOARD DATE:	  25 September 2012

		DOCKET NUMBER:  AR20120005944 


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 from the Armed Forces of the United States) to show the Purple Heart.

2.  The applicant states he was wounded by shrapnel in the knee and suffered a concussion from enemy indirect fire in Korea in early 1953.  He was assigned to Bravo Company, 15th Infantry Regiment, 3rd Infantry Division.  There was no aid station available and he was "walking wounded."  He is currently [receiving] service-connected [disability from the Department of Veterans Affairs (VA)] for his knee and for bilateral hearing loss.  He received x-rays which showed the shrapnel in his knee.

3.  The applicant provides:

* his DD Form 214
* DA Form 209 (Delay and Referral Notice)
* Three letters
* 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's military record is 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 the applicant's records were lost or destroyed in that fire.  However, the applicant provided his DD Form 214 which is sufficient 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 9 December 1952 and he entered active duty on that date in Detroit, MI.  His military occupational specialty is not shown on his DD Form 214 but it does show he was awarded the Combat Infantryman Badge.  His most significant duty assignment was with the 3rd Infantry Division, Korea.

4.  He was honorably released from active duty on 15 October 1954 and transferred to the U.S. Army Reserve.  He completed 1 year, 10 months, and 7 days of creditable active service of which 1 year, 4 months, and 16 days was foreign service.  The specific dates of his service in Korea are not shown.

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

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

7.  His name is not shown in the Korean casualty file.

8.  There is no evidence in his available record and the applicant did not provide any evidence that shows he was awarded the Purple Heart.

9.  The applicant provides:

	a.  A letter, dated 18 December 1953, from Headquarters, 11th Evacuation Hospital, Korea, addressed to the Commander, Bravo Company, 15th Infantry Regiment, Korea, wherein a medical officer stated the applicant received a temporary profile for "internal derangement of the right knee."  He was being returned to the unit on that date but was considered unfit for return to full duty.  It further stated his profile expired on 18 March 1954 and the applicant should report to the nearest U.S. Army medical unit on that date for further evaluation.  The letter did not state how the knee injury was incurred.

	b.  A letter, dated 28 December 1961, from the VA, Detroit, MI, wherein it stated x-rays of both his knees were negative for any unusual findings, except for the small metallic foreign bodies which were seen in the right knee.  It was noted there was no limitation of motion, pain, or stability and a compensable rating for either knee was not warranted.  It further stated no action would be taken at that time unless there was positive evidence that there was actually some knee trouble or knee pathology.

	c.  A letter, dated 4 December 2009, from the VA, Detroit, MI, wherein it stated his combined service-connected evaluation was 100 percent and that he was being paid at the 100 percent rate because he was unemployable due to his service-connected disabilities.  This letter does not state what service-connected disabilities he was being compensated for.

10.  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.

11.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA awards disability ratings to veterans for conditions it determines were incurred during military service and subsequently affect the individual's civilian employability.  The VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

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

2.  While the applicant provides evidence that shows he incurred an injury to his right knee, the evidence he provided does not show that this injury was incurred as the result of hostile action.  His name is not listed on the Korea casualty listing and his DD Form 214 does not indicate he received a combat-related wound.
3.  A disability decision rendered by the VA does not establish entitlement to award of the Purple Heart as it does not show he was wounded as the result of enemy action.  The VA may award ratings because of a service-connected disability that affects the individual's civilian employability.

4.  Notwithstanding the applicant's sincerity, in the absence of documentation that conclusively shows he was wounded or injured as a result of enemy action, 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)                                         AR20120005944





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ABCMR Record of Proceedings (cont)                                         AR20120005944



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