IN THE CASE OF:	  

		BOARD DATE:	 28 April 2015 

		DOCKET NUMBER:  AR20140015989 


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.

2.  The applicant states:

* He was subjected to extremely loud noise from R40 MM Howitzer fire when he was in Korea in July 1954
* The loud noise caused slight hearing loss and tinnitus 
* He applied for and is receiving a 10 percent service-connected disability benefit
* He has Department of Veterans Affairs (VA) hearing aids
* The actor James Garner received a Purple Heart for friendly fire wounds to his "butt" when he was in Korea

3.  The applicant provides:

* Military Order of the Purple Heart letter (undated)
* VA letter dated 26 December 2013
* Newspaper article entitled "This Nice Guy Finished First"

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 records are not available 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, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.

3.  The applicant was inducted into the Army of the United States on 23 January 1953.  

4.  After completing 1 year, 11 months, and 14 days of total net service for pay purposes, the applicant was honorably released from active duty on 6 January 1955.  He was transferred to the U.S. Army Reserve to complete his service obligation.

5.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) on the DD Form 214 (Report of Separation from the Armed Forces of the United States) he received shows the following awards:

* Korean Service Medal
* United Nations Service Medal
* National Defense Service Medal

6.  Item 28 (Most Significant Duty Assignment) on his DD Form 214 shows he was assigned to Headquarters and Headquarters Battery, 213th Field Artillery Battalion.  It also shows the number "1740" which may or may not be the military occupational specialty he held while he was in the Army (chief intermediate speed radio operator).

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

8.  The applicant provides a newspaper article entitled "This Nice Guy Finished First."  It states that the former actor James Garner, "a real-life Korean War vet, knew about war's absurd side: One of the two Purple Hearts he received was for friendly-fire wounds to his butt as he jumped into a foxhole."  He also provides a letter from the VA summarizing the benefits that he currently receives.

9.  A review of the Korean War Casualty File fails to show the applicant was ever wounded as a result of hostile action by enemy forces.

10.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify that 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.  Included as part of the Department of Defense Appropriations Act for fiscal year 1994 was an amendment to the rules governing award of the Purple Heart.  While the original rules established that the Purple Heart would be awarded to individuals killed or wounded as a result of hostile action the amendment enabled the Secretaries of each department to award the Purple Heart to members of the armed forces who were killed or wounded in action by weapons fire, while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States.  This ruling granted the service Secretaries the authority to award the Purple Heart to individuals directly engaged in armed conflict that were killed or wounded as a result of “friendly fire.”

12.  Title 38, United States Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  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.  Consequently, an individual's medical condition may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  The available evidence does not support his contention that he should be awarded the Purple Heart.  The available evidence shows that he suffers from a hearing loss that the VA has determined was incurred or aggravated by service.  He is currently being compensated by the VA for his hearing loss.

3.  There is no evidence in the available record that shows the applicant sustained a wound as a result of enemy action or friendly fire while he was in Korea that required treatment by medical personnel or that such medical treatment was made a matter of official record.

4.  A review of the Korean War Casualty File fails to show the applicant was ever wounded as a result of hostile action by enemy forces.

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20140015989



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ABCMR Record of Proceedings (cont)                                         AR20140015989



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