MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            29 December 1999
	DOCKET NUMBER:   AR1999016175

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Ms. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Christopher J. Prosser		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That he be reconsidered for the award of the Purple Heart with first Oak Leaf Cluster.

APPLICANT STATES:  That his counsel was not notified prior to this Board’s review of his case.  He also states that he submitted two affidavits from former service members that were not considered during this Board’s review of his case. In support of his appeal he submits a copy of an undated letter from what appears to be a former service member who states that he served with the applicant in Korea and that he was present when the applicant suffered wounds in the right leg, just above the knee on or about 22 April 1951, a copy of a letter dated 5 October 1995 from another former service member who also states that he served with the applicant and has personal knowledge that he suffered a wound to his right leg and that he chose to stay with his unit rather than to report to the Aid Station, a copy of his rating decision from the Department of Veterans Affairs and a copy of a newspaper clipping describing the events which took place when members of the 5th Regimental Combat Team died or were captured after being ambushed by the enemy.

COUNSEL CONTENDS:  Counsel asks that this Board carefully consider the lay testimony presented by the applicant and his supporting statements and resolve any doubt in favor of the applicant.

EVIDENCE OF RECORD:  The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from alternate sources.

On 27 July 1948, he enlisted in the Army for 2 years.  On 16 February 1950, he was separated with an honorable discharge and released to a Reserve Component due to hardship.  He was called from inactive duty on 18 October 1950 and he was transferred to Korea.

On 22 February 1951, while in Korea the applicant was injured (frostbite of hands) as a result of hostile action with the enemy.

He was released to the Enlisted Reserve Corps on 22 November 1951 prior to the expiration of his term of service.  However, his Report of Separation (DD Form 214) failed to show the award of the Purple Heart.

On 14 January 1993, his records were corrected to reflect the award of the Purple Heart for the injury he received on 22 February 1951.

On 22 April 1998, the Board denied the applicant’s request for the award of the Purple Heart with first Oak Leaf Cluster.  

There is no evidence in the available records to show that the two affidavits that he contends he submitted during the initial review of his case, were available for the Board’s review.  This Board is now reconsidering the applicant’s request for the award of the Purple Heart with first Oak Leaf Cluster based on the fact that the two affidavits are now available for the Board’s review.  

A review of the available records fails to show that the applicant was injured a second time as a result of hostile action with the enemy.

On 19 November 1999, the applicant’s counsel was notified that his records were available for review.  However, his counsel failed to respond to the notification letter within the prescribed timeframe (30 days).

Army Regulation 600-8-22 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.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The Board has noted the applicant ’s supporting statements and his counsel’s request to resolve any doubt in favor of the applicant.  However, the available records clearly show that he was awarded the Purple Heart on 14 November 1993 after a review of his records revealed that he was injured (frostbite of hands) on 22 February 1951.  Therefore, there is no doubt to be resolved in favor of the applicant.

3.  The evidence submitted by the applicant in the form of lay statements indicate that he received cuts, scratches, and a bruise during enemy action and that he refused to seek treatment by medical personnel at the time.  The Board finds that if his injuries were of such a nature as to qualify for award of the Purple Heart, he would have sought medical treatment immediately thereafter.  Therefore, in the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct, and that he is not entitled to another award of the Purple Heart.

4.  In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___gp___  __cjp ___  ___clg___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999016175	
SUFFIX		
RECON	1998/04/22	
DATE BOARDED	1999/12/29	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  61	107.0015	
2.		
3.		
4.		
5.		
6.