MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           14 March 2002                  
	DOCKET NUMBER:   AR2001057383    

	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:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Walter T. Morrison		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:  In effect, that he was wounded before he was taken prisoner.  He was in a building and an enemy artillery knocked loose bricks that fell on his foot and ankle.  He was not imprisoned with the others from his company.  He fell out of the march, because of his bad foot.  The others were marched further.  He feels like he is not being believed.  He thinks that the medical document he submits demonstrates that he was, indeed, wounded in action.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in the decisional document prepared to reflect the Board's previous consideration of the case (AR2000035616) on 11 May 2000.

The applicant submits a 4 June 1945 Abstract Record of Hospitalization.

The applicant’s submission is new evidence that requires Board consideration.

With reference to the applicant’s foot and ankle, the 4 June 1945 Abstract Record of Hospitalization reports “5.  Complaints that have been investigated:…pain in rt. ankle and foot….”

A search of the National Archives failed to produce any evidence to help substantiate the applicant’s request.

Army Regulation 600-8-22 provides, in pertinent part, that 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 a medical officer, and the medical treatment must have been made a matter of official record.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for 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 that was not in the record at the time of the Board’s prior consideration.  This includes but is not limited to any facts or arguments as to why relief should be granted.  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 one 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.  The 4 June 1945 Abstract Record of Hospitalization is insufficient as a basis for award of the Purple Heart because it does not meet the regulatory requirement that “Substantiating evidence must be provided to verify that the wound was the result of hostile action.” 

2.  Denial of the applicant’s request is not the result of the Board not believing him.  Rather, it is the result of there not being any substantiating evidence.  Clearly every Board decision must be based on some evidence beyond the assertion of the individual making the request.

3.  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.

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

_JHL____  __RWA_  __WTM__  DENY APPLICATION

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

INDEX

CASE ID	AR2001057383	
SUFFIX		
RECON	This applies only to ADRB	
DATE BOARDED	20010314	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	107.00	
2.		
3.		
4.		
5.		
6.