MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            14 May 2002
	DOCKET NUMBER:   AR2002068572

	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. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Melvin H. Meyer		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Donald P. Hupman		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 request for award of the Purple Heart.

APPLICANT STATES:  That he is requesting reconsideration of his claim for award of the Purple Heart for “injuries I received on the back of my neck during the invasion of Sicily on July 10, 1943.”  

The applicant further stated that, in support of this request for reconsideration, he enclosed a statement from a medical doctor and a statement from his only living relative.  The 8 August 2001 statement from the physician is attached to his request for reconsideration; however, there is no statement attached from his only living relative.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the original consideration of the applicant’s case in Docket Number 2000046636 by the Army Board for Correction of Military Records (ABCMR) on 8 May 2001.

The doctor’s statement submitted by the applicant is new evidence which will be considered by the Board.

Although there was no statement from the applicant’s only living relative attached to his request for reconsideration, there is such a statement in the records considered by the ABCMR in Docket Number 2000046636 on 8 May 2001.  Therefore, this statement by the applicant’s only living relative at the time is not new evidence.  

The applicant submitted an 8 August 2001 letter from a medical doctor who states that he has treated the applicant since 1984.  The medical doctor wrote:  

	“He [the applicant] has multiple superficial scars on the right posterior neck consistent with old shrapnel injuries.  These are old scars but still visible and consistent with his history of injuries during the invasion of Sicily in June of 1943.”

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.

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 ABCMR’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.  This Board considered the 8 August 2001 statement by the medical doctor as new evidence.  This Board also reviewed all the evidence and records considered by the ABCMR in Docket Number 2000046636 on 8 May 2001.

2.  This Board noted that the applicant signed his WD AGO Form 53-55 (Enlisted Record and Report of Separation) at the time of his separation.  This military record shows in item 34 (Wounds Received in Action) the entry, “NONE” indicating that he was not wounded as a result of hostile action.

3.  This Board noted that the applicant completed item 11 (List all significant diseases, wounds and injuries) of his WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior To Discharge, Release From Active Duty Or Retirement) on 20 November 1945.  This medical record completed at the time of the applicant’s separation from the Army shows entries for malaria and possible gastric ulcer, but not for wounds of the neck or scars or other injuries consistent with shrapnel wounds claimed by the applicant.

4.  This Board noted that the applicant also signed and submitted a VA Form 526 (Veteran’s Application for Pension or Compensation) which was received by the Veterans Administration Mail Section in New York on 13 December 1945 and by the adjudication officer at the regional office in New York on 7 January 1946.  This form indicates that the bases of his claim were malaria and a possible gastric ulcer.  The applicant made no reference to any wounds or other injuries resulting from hostile action on this application.

5.  Based on all of the foregoing, this Board determined that the letter from the medical doctor is insufficient as a basis for award of the Purple Heart in this case because the preponderance of the evidence from the applicant’s service personnel and medical records indicates that the applicant was not wounded as a result of hostile action during World War II.

6.  As a result, this Board finds that there is no basis to reverse the previous decision of the ABCMR rendered in Docket Number 2000046636 on 8 May 2001.

7.  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

__DPH__  __KAN__  __MHM__  DENY APPLICATION

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

INDEX

CASE ID	AR2000046636	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020514	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	MR CHUN	
ISSUES         1.	107.0015.0000	
2.		
3.		
4.		
5.		
6.