MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:          29 August 2002
	DOCKET NUMBER:  AR2002072174    

	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	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. Harry B. Oberg		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 the Department of Veterans Affairs (DVA) granted him service connected disability for a scar, residual of gunshot wound of the left leg on 3 November 2001.  He contends that since this gunshot wound is service connected he qualifies for award of the Purple Heart. 

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in the Memorandum of Consideration prepared to reflect the consideration of Docket Number AR2001061900 by the Army Board for Correction of Military Records (ABCMR) on 23 October 2001.

The applicant submitted a DVA Rating Decision, dated 20 November 2001, which shows that he was granted service connection for a scar, residual of gunshot wound of the left leg with an evaluation of zero percent effective 
3 November 2001.

The DVA Rating Decision submitted by the applicant is new evidence and will be considered by the Board.

The DVA Rating Decision shows that the applicant, in a letter, dated 
27 October 2000, “gave the history that he sustained a gunshot wound to his left calf in 1945, December.”  The DVA Rating Decision further states that the applicant’s wounding occurred in Italy as he was standing beside his jeep and that there were two shots, the second of which struck his left calf.  The Rating Decision indicates the applicant returned to an aid station, received three stitches, and returned to his company.  

The Board noted that the applicant’s WD AGO Form 53-55 (Enlisted Record and Report of Separation), which was authenticated in his own hand, does not show the Purple Heart as an authorized award.  Item 34 (Wounds Received in Action) on his WD AGO Form 53-55 shows the entry, “NONE.” 

There is no indication of hospital admission cards in the records of the Surgeon General of the Army which show the applicant was hospitalized or treated for wounds or injuries as a result of hostile action. 

Evidence of record shows the applicant arrived in the European Theater of Operations on 31 October 1945.  Historical records of the Army show that German forces in Italy signed an unconditional surrender effective 2 May 1945 and hostilities in the European Theater of Operations ceased on 7 May 1945.
 
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, and the medical treatment must have been made a matter of official record.

Army Regulation 15-185 (Army Board for Correction of Military Records) 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.

Army Regulation 15-185 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 Board reviewed the DVA Rating Decision provided in support of the applicant’s claim for award of the Purple Heart.  The Board noted that this Rating Decision was made over 50 years after the date the applicant contends he was wounded.  As a result, the Board determined that this Rating Decision is not sufficient by itself as a basis for award of the Purple Heart in this case.

2.  Evidence of record shows the applicant signed his discharge document on 
7 January 1947 attesting to the fact that he was not wounded in action and was not entitled to award of the Purple Heart.  

3.  The Board also noted that hostilities ceased in Europe effective 7 May 1945 and the injury to the applicant was sustained in December 1945.

4.  Based on the foregoing, the Board determined that there is insufficient evidence on which to base award of the Purple Heart in this case, particularly in view of the evidence of record which shows the applicant was not wounded, he was not awarded the Purple Heart, and he sustained his injury over six months after hostilities had ceased.

5.  The overall merits of the case, including the latest submission, is 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

MKP____  CJP_____  HBO____  DENY APPLICATION

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

INDEX

CASE ID	AR2002072174	
SUFFIX		
RECON	Yes	
DATE BOARDED	20020829	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	107.0015	
2.		
3.		
4.		
5.		
6.