MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 August 2001                 
	DOCKET NUMBER:   AR2001054911

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Ms. Linda D. Simmons                           		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:  Reconsideration of his earlier appeal to correct his military records by awarding him the Purple Heart. 

APPLICANT STATES:  That he was actually presented the medal “on the field of combat” in 1952.  He also complains that Department of Veterans Affairs (VA) has treated him unfairly.  He makes reference to medical files that were believed to replace those lost or destroyed in the National Personnel Records Center fire in 1973.  He submits copies of news releases about those medical files.  Although he indicated on the DD Form 149 (Application for Correction of Military Records) that he did not wish a personal hearing, his attached narrative indicates that he does request a personal appearance hearing before the Board.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum of consideration prepared to reflect the Board's previous consideration of the case (AR2000040828) on 19 September 2000.

The applicant’s contentions are new argument that requires Board consideration.

The applicant retired due to length of service in 1976.

A health record research project, commonly referred to as the "SGO Files", involved transposing the hospital admission card data from the periods of World War II and the Korean conflict onto magnetic tape.  In 1988 the National Research Council made these tape files available to the National Personnel Records Center (NPRC).  The availability of the information to the NPRC received considerable publicity by the various veterans service organizations.  It was widely believed that these tapes would become a valuable substitute for the records lost in the NPRC fire of 1973.  It is estimated that the SGO files document 95 percent of all hospitalized battle casualties from World War II and the Korean War.  

The only available SGO entries show that the applicant was hospitalized in Korea as a non-battle casualty on 12 August 1952.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision.  If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

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.  There is no available evidence of record that the applicant was treated for a wound sustained while in action against the enemy or as the result of enemy action.  

2.  The SGO files fail to substantiate entitlement to the Purple Heart.

3.  Prior to reaching a determination that it was not in the interest of justice to excuse a failure to timely file, the Board looks at an entire file.  The Board considers the statute of limitations only after all other aspects have been considered and it has been concluded that there is no basis to recommend a correction of the records.  When the Board determines that an error or injustice exists, it routinely recommends relief in spite of a failure to submit the application within the 3-year time limit.  Although the decisional document may not state that the Board considered the merits of the case, the display of the pertinent details of applicant’s service record, the circumstances of the case and the regulations governing the issues tends to show that it did.  The Board does not deny applications simply because they were not submitted within 3 years. 

4.  There is no statutory or regulatory right to a formal hearing.  The Board receives over 15,000 applications each year, but normally grants only approximately 20 formal hearings a year.  Formal hearings are granted only when it is determined that a case is so complex, or the records so incomplete that only sworn testimony can provide the necessary information.

5.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

6.  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

___RVO_  __CJP __  __LDS___  DENY APPLICATION

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

INDEX

CASE ID	AR2001054911	
SUFFIX		
RECON		
DATE BOARDED	20010830	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	107.00	
2.		
3.		
4.		
5.		
6.