BOARD DATE:	  9 September 2012

		DOCKET NUMBER:  AR20120006137 


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:

The applicant defers her request for reconsideration through her counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's earlier request for award of the Purple Heart (PH) for her late husband, a former service member (FSM), Corporal J.L.S.

2.  Counsel states and makes her request based on the following:

* the FSM sustained wounds as a result of hostile action as listed in the requirements for award of the PH in Army Regulation 600-8-22 (Military Awards) 
* his Prisoner of War (POW) Rating Decision from the Department of Veterans Affairs (VA) states his rating was based on incurred combat-related wounds
* it is obvious the VA has a record of his combat-related service; otherwise the VA would not have made such an affirmation
* although the Army no longer has his military records, files maintained by the VA prove he sustained wounds as a direct result of hostile action
*	he received multiple gunshot wounds in combat just prior to his capture in December 1950 and he remained a POW until repatriated in August 1953 



3.  Counsel provides:

* self-authored statements
* VA rating decision, dated 10 August 2004
* letter from the widow of Corporal J.L.S., dated 15 February 2012
* VA letter, dated 14 June 2001
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings, Docket Number AR20110014710, dated 31 January 2012

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20110014710, on 31 January 2012.

2.  Counsel submits new arguments, a letter from the applicant with two attachments--a letter from the VA, dated 14 June 2001, which verifies the FSM's period of service and his disability compensation and the FSM's VA rating decision, dated 10 August 2004, wherein the VA determined he sustained multiple gunshot wounds in combat just prior to his capture in December 1950.  A DD Form 215 (Correction to DD Form 214 (Report of Separation from the Armed Forces of the United States)) awarding the FSM the POW Medal was also provided.  These arguments and documents are considered new evidence and as such warrant consideration by the Board.

3.  The FSM'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 the former Soldier's 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.  

4.  The FSM's DD Form 214 shows the following:

* he enlisted in the Regular Army on 7 March 1949
* he served as an infantryman
* he was honorably discharged from active duty on 20 November 1953
* he completed 4 years, 8 months, and 14 days of creditable active military service with 3 years, 10 months, and 10 days of foreign and/or sea service
* he was awarded the following awards and decorations:

*	Army of Occupation Medal with Japan Clasp
*	Combat Infantryman Badge
*	National Defense Service Medal
*	Korean Service Medal with one bronze service star
*	United Nations Service Medal

5.  The Office of the Surgeon General Hospital List shows the FSM was hospitalized in Korea on 27 August 1953 for malnutrition and other conditions.  This form also states:

* No traumatism diagnosis on the trailer card
* No injury coded for this case
* he was a former prisoner of enemy

6.  A review of the Korean casualty roster shows the FSM was returned to military control.  It does not show he was wounded in action.  

7.  The FSM's VA rating decision shows, in pertinent part, he sustained multiple gunshot wounds in combat prior to his capture in December 1950 and he remained a POW in a camp near the Yalu River for an extended period of time until repatriated in August 1953.  The rating decision does not refer to any treatment or other military documents.

8.  On 23 April 2012, a DD Form 215 was issued showing the FSM was awarded the POW Medal.

9.  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.

10.  Section 521a of the National Defense Authorization Act of 1996 authorized award of the Purple Heart to any former prisoner of war who was wounded before 25 April 1962 while held as a prisoner of war or while being taken captive, in the same manner as a former prisoner of war who was wounded on or after that date.  Section 521b specifically stated that award of the Purple Heart for prisoners of war under Section 521a shall be made in accordance with the standards in effect on the date of the enactment of this Act to persons wounded on or after 25 April 1962.



DISCUSSION AND CONCLUSIONS:

1.  Counsel's request for reconsideration of the applicant's previously denied request for award of the Purple Heart for her late husband was carefully considered.

2.  Although the VA was able to determine the FSM suffered gunshot wounds, and notwithstanding the length of time he was a POW, there is insufficient evidence showing he received injuries as a result of enemy action.  The VA rating decision does not indicate what records the VA was looking at that showed he suffered gunshot wounds (e.g., service medical records or earlier VA medical records wherein it was taken from the FSM’s account that he suffered gunshot wounds).  Counsel acknowledges the FSM's original military records are no longer available and notes the VA has a record of his combat service; however, this evidence was not provided.  The DVA operates under a totally separate system with a different statutory basis.  Further, records from the Office of the Surgeon General Hospital List do not show his injuries were incurred in combat.    

3.  The Board acknowledges the FSM's records were destroyed by fire and reiterates the law and regulation authorizing the Purple Heart to be awarded to POW's required the same standard of proof as for all other awards of the Purple Heart, specifically:  proof of wounds received as a result of hostile action, medical treatment, and a record of treatment.  Therefore, without his repatriation physical examination, repatriation debriefing record, or credible eyewitness statements which would identify wounds sustained as a result of hostile action, or while in captivity, regrettably there is an insufficient 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 to amend the decision of the ABCMR set forth in Docket Number AR20110014710, dated 31 January 2012.




      _______ _   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)                                         AR20120006137



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ABCMR Record of Proceedings (cont)                                         AR20120006137



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