IN THE CASE OF:	  

		BOARD DATE:	  13 October 2015

		DOCKET NUMBER:  AR20150003625 


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.  He states he was the front passenger in a jeep on a road where a smoke generator was being used to try and conceal the road from enemy forces in Sidamak Valley in the Republic of Korea (ROK).  While going through the smoke filled road, he spotted a truck coming at them very fast.  He stood up and waived franticly at the driver, but the driver's vision was obstructed and he could not see them.  The truck hit them head-on causing the jeep to be thrown backwards and he was ejected from the jeep.  He landed on his head, shoulder, and left elbow and his funny bone took a bad hit causing him to be light headed due to a burning sensation and a head injury.  He was treated at the regimental aid station and sent back to his unit.  The scars are still visible today and he still has pain in his elbow.  Because of the numerous battles in their area, the staff was extremely busy and apparently nothing was entered in his records.

3.  He provides:

* Self-authored statement
* Department of Veterans Affairs (VA) Rating Decision, dated 25 January 2015
* VA Form 9 (Appeal to Board of Veterans' Appeals), dated 3 October 2012
* Internet article from the "Military Order of Purple Heart"
* VA letter, dated 13 September 2012


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 to the ABCMR 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.  This case is being considered based on a reconstructed file and the documents provided by the applicant.

3.  The applicant's DD Form 214 (Report of Separation from the Armed Forces of the United States) show he was inducted into the Army of the United States and entered active duty on 16 October 1952.  He served 2 years on active duty of which 1 year, 1 month, and 1 day was listed as foreign service.  He was honorably discharged on 15 October 1954.

4.  His DD Form 214 does not show award of the Purple Heart.  Additionally, item 29 (Wounds Received as a Result of Action with Enemy Forces) of this form contains the entry "None."  

5.  There is no documentation in the available records which shows that he sustained wounds or was treated for wounds incurred as a result of hostile action.

6.  His name is not listed on the Korean Casualty List.  

7.  The applicant provided his VA Rating Decision that shows he received a 10 percent (%) disability rating effective 15 October 2010 for service connection for each of the following conditions:

* posttraumatic ulnar neuropathy (claimed as left elbow condition) 
* impairment of supination and/or pronation (forearm)

8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained 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 a medical officer, and the medical treatment must have been made a matter of official record.   It further states. Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows:

* Frostbite or trench foot injuries.
* Heat stroke.
* Food poisoning not caused by enemy agents.
* Chemical, biological, or nuclear agents not released by the enemy.
* Battle fatigue.
* Disease not directly caused by enemy agents.
* Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The fact that the applicant provided his VA Rating Decision document that shows he was granted a 10% disability rating for service connection for a left elbow condition and forearm, is not sufficient evidence to conclude that he is entitled to the award of the Purple Heart.  The VA rating does not prove that he was wounded as a result of hostile action in the ROK.

2.  There are no medical records available which show he was wounded or treated for wounds as a result of hostile action during his service in the ROK.   Additionally, his name is not listed on the Korean Casualty List.  In the absence of medical records supporting the applicant's contention, there appears to be an insufficient basis for 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 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)                                         AR20150003625





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ABCMR Record of Proceedings (cont)                                         AR20150003625



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