IN THE CASE OF:
BOARD DATE: 24 October 2013
DOCKET NUMBER: AR20130004434
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 the award of the Purple Heart.
2. The applicant states he was subjected to loud blasts in Korea so severe that they caused damage to his brain which affects his balance. The Department of Veterans Affairs (VA) granted him service-connected disability for tinnitus from the Korean War. His balance is affected so severely that he receives therapy through the VA to enable him to walk.
3. The applicant provides no additional evidence.
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. His complete military records were 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 his records were lost or destroyed in that fire. However, there were sufficient documents available for the Board to conduct a fair and impartial review of this case.
3. On 10 March 1952, he enlisted in the Regular Army.
4. On 20 September 1952, he was assigned to Headquarters, 934th Engineer Aviation Group, in Korea and further assigned to Company C, 839th Engineer Aviation Battalion on 1 October 1952 as a clerk typist (military occupational specialty 4405). On 22 July 1953, he was assigned to the 498th Engineer Aviation Brigade, Wolters Air Force Base, TX.
5. On 18 December 1954, he was released from active duty. His DD Form 214 (Report of Separation from the Armed Forces of the United States) shows he was awarded or authorized the:
* National Defense Service Medal
* Army Good Conduct Medal
* Korean Service Medal with three bronze service stars
* United Nations Service Medal
6. Item 29 (Wounds Received as a Result of Action with Enemy Forces) of his DD Form 214 contains the entry "None."
7. His service medical records are not available for review.
8. There are no orders in the available military service records awarding him the Purple Heart.
9. His name does not appear on the National Archives and Records Administration Korean War Casualty File.
10. Army Regulation 672-5-1 (Decorations and Awards), then in effect, stated the Purple Heart was awarded to any member of the Armed Forces of the United States and to any civilian citizen of the United States serving with the Army who was wounded in action against an armed enemy of the United States or as a direct result of an act of such enemy, provided the wound necessitated treatment by a medical officer.
a. Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record.
b. Not more than one award of this decoration will be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent.
11. Title 38, U.S. Code, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine whether a disability was a result of hostile action. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.
DISCUSSION AND CONCLUSIONS:
1. The veracity of the applicant's statement is not questioned. However, there is no official documentation to corroborate his statement. Although he stated the VA determined his tinnitus is service connected, the VA only determines whether a condition was incurred in or aggravated by active military service. The VA is not required to determine whether a disability was a result of hostile action.
2. In the absence of military records which show the applicant was wounded or injured or treated for wounds or injuries resulting from hostile action, there is insufficient evidence upon which to base award of the Purple Heart in this case.
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) AR20130004434
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ABCMR Record of Proceedings (cont) AR20130004434
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