MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 April 2001
	DOCKET NUMBER:   AR2001051125

	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. Carl W. S. Chun		Director	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Roger W. Able		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Donald P. Hupman, Jr.		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 awarded the Purple Heart (PH).

APPLICANT STATES:  That he was injured due to a collision with an enemy plane while on a reconnaissance mission.  He states that he is eligible to be awarded the PH.  In support of his application he submits a letter from the Total Army Personnel Command (PERSCOM), a copy of the letter requesting congressional assistance, and WD AGO Form 53-98 (Military Record and Report of Separation Certificate of Service).

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant entered the Army on 26 Aug 1943 and served as a field artillery unit commander.  His highest rank attained was first lieutenant.

On 31 December 1944 while taking off in a cub plane as an aerial observer near Marche, Belgium, the plane the applicant was occupying accidentally collided with a landing plane and caught fire.  The applicant sustained 1st, 2nd, and 3rd degree burns and deformity to his face, scalp and legs.

The applicant’s injuries resulted in a Disposition Board Proceedings for Officers being convened on 12 February 1947.  The Disposition Board Proceedings for Officers noted that the applicant’s injuries were accidentally incurred and recommended that the applicant appear before an Army Retiring Board.  He appeared before the Army Retiring Board on 13 March 1947.  The Army Retiring Board approved the findings of the Disposition Board Proceedings for Officers.  The applicant was permanently retired from the Army by reason of physical disability (70%) on 15 June 1947. 

The letter provided by the applicant indicated PERSCOM denied his request to be awarded the PH.  PERSCOM opined that the applicant’s personal statements and the Disposition Board Proceeding for Officers indicated that the plane occupied by the applicant, averted collision with an aircraft that was landing and crashed.  Also, the applicant’s wounds were not caused by direct result of enemy action, but because of an aircraft accident.

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, and the medical treatment must have been made a matter of official record.

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 individual's 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 weapon fire, while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States.  This ruling, in effect, granted the service Secretaries the authority to award the Purple Heart to individuals directly engaged in armed conflict who were killed or wounded as a result of "friendly fire."

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.  The evidence of records shows that the applicant’s injuries were the result of an aircraft accident not the result of hostile enemy action and as such he is not entitled to the PH.

2.  The Board found no evidence nor has the applicant provided evidence that would award him the PH in accordance with the amendment to the rules governing the award of the PH. 

3.  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

__RWA___  __RTD___  __DPH___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001051125	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010412	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.