MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           5 September 2002                  
	DOCKET NUMBER:   AR2002070255

	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. E. Schnupp		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John T. Meixell		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.

APPLICANT STATES:  That he should have received the Purple Heart for stepping on a land mine in Korea.  While on a reconnaissance mission inside the DMZ, in an unmarked minefield, he stepped on a mine that must have been placed because it was unmarked, less than 1300 feet from North Korea. 

In support of his request, he submits a MEDIVAC Summary showing that he suffered a partial amputation of the right foot as a result of stepping on a mine on 16 May 2001, and a Record of Inpatient Treatment from the 121st General Hospital showing the treatment he received for his injury.

COUNSEL CONTENDS:  That the placement of the mine was an act of the North Korean Army regardless of the amount of time it took to be activated.  Records reflect the necessity of treatment caused by the enemy land mine.  In light of the foregoing, counsel, the Disabled American Veterans, anticipates a favorable decision in this matter.

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

At the time he submitted his application, he was a sergeant on active duty.  At the time of his accident, he was assigned to a US Army, United Nations Command Security Battalion in Korea.

A US Army Accident Report (DA Form 285), prepared by an investigating officer, contains the following description of the accident.  At about 1630 on 16 May 2001, the applicant and two other soldiers departed his unit in a van to conduct a reconnaissance of landing zones and training areas commonly used in the conduct of Non-Combatant Evacuation Operations (NEO).  The reconnaissance party’s intention was to enter an abandon military compound, which had been used in the past as a NEO training area.  Upon arrival at the compound they found that the gate was locked so they proceeded back to their unit.  After traveling approximately 300 meters the applicant said he needed to urinate and pulled the van to the right side of the road.  Upon exiting the vehicle, he moved around to the front of it and encountered a barbed wire fence.  He proceeded to move between the top and bottom strands of barbed wire and entered a mined area.  After moving approximately six feet into the mined area the applicant stepped on a “toe popper” landmine.  The explosion severed his big toe and the ball of his right foot.

While moving to the entrance of the abandoned military compound and returning to their unit none of the three men claimed to have seen the triangular, red minefield warning signs on the side of the road.  The applicant says that he was focused on the tangle foot barbed wire and did not notice the minefield warning signs, nor did the other members of the group pay any attention to the road or the area on either side of it.  An examination of the area showed that the minefield warning signs were placed intermittently on the barbed wire fence with some as far as 100 meters apart and other sections containing successive signs every 20-30 meters apart.  Additionally, the fence was damaged due to the bottom strand of barbed wire being stretched to the point that it laid on the ground.

The accident report indicates that the minefield was poorly marked and the barbed wire fence around it was overly stretched and damaged.  However, the investigating officer found that human error and individual failure as well as a material failure, (the fence around the minefield was in a state of disrepair and many of the warning signs were missing), contributed to the applicant’s injury.

A copy of the applicant’s request for the Purple Heart was provided to the US Total Army Personnel Command (PERSCOM) for an Advisory Opinion.  On 7 June 2002 the PERSCOM opined that based on the safety investigation into the applicant’s injury, it was determined that his injuries were accidentally incurred and he is not entitled to the Purple Heart.  The PERSCOM recommends that the application for the Purple Heart be denied.

A copy of the PERSCOM’s Advisory Opinion was provided to the applicant for information/comment but he did not reply.

Army Regulation 600-8-22, Military Awards, 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.  Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action do not qualify for award of the Purple Heart.

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

1.  The Army regulation pertaining to award of the Purple Heart stipulates that wounds or injuries involving accidents do not qualify for award of the Purple Heart.

2.  In this case, the accident investigating officer found that the number 1 contributing factor to the applicant’s injury was human error and individual failure, when neither he nor the two other members of his party noticed the warning signs or the barbed wire fence surrounding a minefield.  A contributing cause of the accident was a material failure in that the fence and signs marking the minefield were in a state of disrepair.  Nonetheless, the evidence in this case points to the fact that the applicant’s injury was the direct result of an accident and not due to enemy action, which does not entitle him to award of the Purple Heart.

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

___cla  __  ___mhm_  ____jtm__  DENY APPLICATION

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

INDEX

CASE ID	AR2002070255	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020905	
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.  107.00		
2.		
3.		
4.		
5.		
6.