BOARD DATE:	  20 December 2012

		DOCKET NUMBER:  AR20120008831 


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 and 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 received concussion wounds as a result of enemy artillery with intracranial lesions with loss of consciousness.  He was granted a zero percent disability rating upon discharge; however, his audiologist at the Department of Veterans Affairs recommended that he apply for the Purple Heart.  He believes his injury qualifies for the Purple Heart based on new clarifying directives.

3.  The applicant provides his DD Form 214 and a self-authored statement.

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 to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  The applicant's records were affected by the fire and many documents in his records were partially burned.  However, there were sufficient legible documents available for the Board to conduct a fair and impartial review of this case.

3.  The applicant's records show he was inducted into the Army of the United States on 13 June 1951 and he held military occupational specialty 1870 (Assistant Chemist).  He served in Korea while assigned to Headquarters, X Corps.

4.  He was honorably released from active duty on 26 May 1953 and transferred to the U.S Army Reserve.  He completed 1 year, 11 months, and 14 days of creditable active service of which 1 year, 5 months, and 27 days were foreign service.

5.  Item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not show award of the Purple Heart but does show he was awarded the Bronze Star Medal.

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

7.  His records do not contain orders awarding him the Purple Heart.

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

9.  The applicant indicates in his self-authored statement that he never considered his hearing loss to be a wound until his audiologist asked him if he received the Purple Heart.  He contends that having two punctured ear drums accompanied by continual perforation and bleeding as a result of enemy artillery would be the equivalent of a concussion wound and should be considered an intracranial lesion.  His injury was not caused by shrapnel but the concussion of the burst wounded him by resulting in severe hearing loss.  He believes that under the new clarifying Army directives he is eligible for award of the Purple Heart.  Further, he believes the directive should be extended beyond the retroactive date of 11 September 2011 to the Korean War.

10.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded to a member of the Armed Forces of the United States who, while serving in any capacity with one of the U.S. Armed Services after 5 April 1917, has been wounded or killed or who has died or may die after being wounded in any action against an enemy of the United States.  Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

11.  Army Regulation 600-8-22 defines a wound as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions listed above.  A physical lesion is not required, however, the wound for which the award is made must have required treatment by medical personnel and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:

* injuries caused by enemy bullet, shrapnel, or other projectile created by enemy action
* injuries caused by enemy placed mine or trap
* injuries caused by enemy released chemical, biological, or nuclear agent
* injuries caused by vehicle or aircraft accident resulting from enemy fire
* concussion injuries caused as a result of enemy generated explosions
12.  Military Personnel Message Number 11-125, issued by the U.S. Army Human Resources Command, dated 29 April 2011, stated the Secretary of the Army had approved Army Directive 2011-07 (Awarding the Purple Heart).  The directive provides clarifying guidance to ensure the uniform application of advancements in medical knowledge and treatment protocols when considering recommendations for award of the Purple Heart for concussions (including mild traumatic brain and concussive injuries that do not result in a loss of consciousness).  This message does not change the standards for award of the Purple Heart for concussion injuries.  This policy is retroactive to 11 September 2001.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests award of the Purple Heart and correction of his DD Form 214 to show the Purple Heart.


2.  The applicant contends he received a concussion wound as a result of enemy artillery.  He states that he is receiving treatment at the VA for continuous spontaneous puncture, continued bleeding, and continual increase in hearing loss considered to be an intracranial lesion which he believes qualifies him for the award of the Purple Heart based on revised Army rules.  The Army clarification guidance for considering recommendations for award of the Purple Heart for concussions is retroactive to 11 September 2001 (the standards did not change).  As such, this guidance does not apply to the applicant.

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

4.  The applicant failed to provide treatment records which could confirm his hearing loss was the result of hostile action.  In addition, his military record is void of any official Army documentation that shows he was wounded, his wounds were the result of hostile action, the wounds were treated by medical personnel, and such treatment was made a part of the official record.

5.  In the absence of evidence to show he was wounded or injured as a result of hostile action, treated for such wounds, or that the medical treatment was made a matter of official record there is insufficient evidence upon which to base award of the Purple Heart.

6.  The applicant and all others concerned should know that this action in no way diminishes 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.

7.  In view of the foregoing, there is an insufficient basis in which to grant award of the Purple Heart.

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)                                         AR20120008831



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ABCMR Record of Proceedings (cont)                                         AR20120008831



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