RECORD OF PROCEEDINGS

	IN THE CASE OF: .

	BOARD DATE:            29 January 2004  
	DOCKET NUMBER:   AR2003089957

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Phyllis Perkins		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Walter T. Morrison		Member	
	Ms. Karen Y. Fletcher		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests award of the Purple Heart due to a combat-related injury. 

2.  The applicant states he never received award of the Purple Heart for a combat-related injury he sustained during a patrol at the Demobilized Zone in Korea.

3.  The applicant provides a copy of 25th Infantry Division Orders 76-125, dated 6 April 1993, which separated him from active duty.  He also provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on 28 April 1993, the date the applicant was issued his DD Form 214.  The application submitted in this case is dated 11 April 2003.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant initially served in the U.S. Army Reserve.  He entered active duty on 1 May 1985.  He was awarded the military occupational specialty 11B (Infantryman).  The applicant was discharged from active duty on 28 April 1993 by reason of physical disability with severance pay.

4.  The applicant’s DD Form 214, which was authenticated in his own hand, does not show award of the Purple Heart.  There are no orders in his service personnel records which authorized award of the Purple Heart to him.

5.  Records show the applicant served in Korea from 5 December 1986 through 27 November 1987. 

6.  On 2 March 1993, the applicant was considered by a Medical Evaluation Board (MEB).  The Narrative Summary of the MEB states:  "The patient is a 
31-year old active duty US Army E5 who sustained a left ankle fracture in 1987 as a result of a twisting fall into a hole while on a patrol maneuver near the DMZ [Demilitarized Zone] in Korea."

7.  On 15 March 1993, the applicant's case was considered by a Physical Evaluation Board (PEB).  The PEB Proceedings indicated the applicant was found unfit for military service and recommended he be separated with a disability rating of 10 percent for pain, left ankle, status post traumatic injury with ORIF [open reduction of internal fixation] and subsequent hardware removal, with evidence of degenerative joint disease.  There is no indication in the PEB records which shows that the applicant's ankle injury was the result of hostile action.

8.  Item 10c of the DA Form 199 states:  "THE DISABILITY DID RESULT FROM A COMBAT RELATED INJURY AS DEFINED IN 26 U.S.C. 104" [Title 26 United States Code, section 104].

9.  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.

10.  Title 26, United States Code, section 104, provides that disability severance pay is exempt from Federal taxation if the pay is based on a disability resulting from a combat-related injury.  Combat related is defined as an injury that was a direct result of armed conflict, incurred while engaged in extrahazardous service (flight, parachute or demolition duty) or incurred under conditions simulating war (live fire exercises).

11.  Webster's Ninth New Collegiate Dictionary defines "maneuver" as "an armed forces training exercise."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to the award of the Purple Heart due to a "combat related injury" sustained at the Demilitarized Zone in Korea on an unspecified date in 1987.

2.  Records show that a PEB convened on 15 March 1993 determined the applicant's disability resulted from a combat related injury as defined in Title 26, United States Code, section 104.

3.  Title 26, United States Code, section 104 defines combat related as an injury which resulted from armed conflict, extrahazardous service, or under conditions simulating war.

4.  There is no evidence of armed conflict at the Demilitarized Zone in Korea at the time of the applicant's injury.  

5.  There is no evidence in the applicant’s service records which shows that he was wounded or treated for wounds or injuries resulting from hostile action or armed conflict. 

6.  The MEB Narrative Summary clearly shows that the applicant sustained a fractured ankle from a twisting fall while on a "patrol maneuver" near the Demilitarized Zone in Korea.  This medical record clearly shows that his fractured ankle was the result of a twisting fall, not the result of hostile action.

7.  The term "maneuver" refers to training exercises; therefore, it is clear that the "combat related injury" in this case resulted from conditions simulating war [a patrol maneuver], not as a result of hostile action or armed conflict.

8.  In the absence of evidence which shows the applicant was wounded or injured as a result of hostile action and treated for those wounds or injuries, there is insufficient evidence upon which to base award of the Purple Heart in this case. 

9.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 28 April 1993; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 27 April 1996.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_WTM___  _KYF___  _RVO____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.

		__Raymond V. O'Connor, Jr.
		        CHAIRPERSON

INDEX

CASE ID	AR2003089957	
SUFFIX		
RECON		
DATE BOARDED	20040129	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	107.015	
2.		
3.		
4.		
5.		
6.