ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 26 September 2019 DOCKET NUMBER: AR20170009822 APPLICANT REQUESTS: award of the Purple Heart and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 65th Infantry Regiment Photograph * 3 Sworn statements * DD Form 214 (Report of Separation from the Armed Forces of the United States) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicants states his DD Form 214 does not show the Purple Heart Medal, due to a clerical error. 3. The applicant provides: a. A photograph of the 65th Infantry Regiment Borinqueneers, Fijar Bayonetas. b. Sworn statement 1 from Mr. F__ M__, a neighbor stating he has known the applicant since approximately 1948 and they both enlisted in the U.S. Armed Forces around 1950. In 1951 the applicant received injuries from combat that resulted in injury to his face and unconsciousness. c. Sworn statement 2 from Ms. C__ M-T__, stating she received a Red Cross telegram in 1951, which notified her that her brother, the applicant, had an accident during the Korean War. d. Sworn statement 3 from Mr. F__ S-M__, a neighbor stating he has known the applicant since childhood. They both enlisted in the U.S. Armed Forces in 1950. He has knowledge that in the year 1951 the applicant received injuries from combat, which resulted in injury to his face and unconsciousness. 4. The applicant’s complete military records are not available to the Board for review. A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973. It is believed the applicant’s records were lost or destroyed in that fire. 5. A review of the applicant’s DD Form 214 shows: a. He was inducted in to the Army of the United States on 6 November 1960. b. He served 10 months and 8 days of foreign and/or sea service. c. The hospital admission cards created by the Office of the Surgeon General Department of the Army (1942-1945) and (1950-1954) provided the following medical information pertaining to the applicant: (1) He was treated in an Army Medical Treatment Facility Overseas in November 1950, for furuncle of his forearm; however, there was no causative agent recorded. He was released back to duty for general service. (2) He was also treated in an Army Medical Treatment Facility Overseas on 28 November 1951, for a lacerated chin and a contusion to his heel. The causative agent for his injuries were recorded, as a result of a motor vehicle traffic accident. He was released back to duty for general service. (3) However, his record does not contain documentation showing he was wounded or awarded the Purple Heart. d. A review of the Korean War casualty file does not list the applicant’s name as casualty. e. On 12 August 1953, he was honorably released from active duty. His DD Form 214 shows he completed 2 years, 9 months and 7 days of active service. Item 25 shows he was awarded or authorized the: * Korean Service Medal w/3 Bronze Service Stars * United Nations Service Medal * Combat Infantry Badge * Republic of Korea Presidential Unit Citation 5. By regulation (AR 600-8-22: a. To be awarded the Purple Heart, the regulatory guidance requires all elements of the award criteria to be met; there must be proof a wound was incurred as a result of enemy action, that the wound required treatment by medical personnel, and that the medical personnel made such treatment a matter of official record. b. When contemplating eligibility for the Purple Heart, the two critical factors commanders must consider is the degree to which the enemy or hostile force caused the wound, and was the wound so severe that it required treatment by a medical officer. Some examples of enemy-related actions which justify eligibility for the Purple Heart include injury caused by enemy emplaced trap, mine or other improvised explosive device; as well as concussions and or mild TBI caused as a result of enemy-generated explosions that result in either loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the concussive incident. 6. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that it could reach a fair and equitable decision in the case without a personal appearance by the applicant. Additionally, the Board found relief was not warranted. Based upon the documentary evidence provided by the applicant and found within the military service record, the Board noted that his injury was a result of an accident – not a result of enemy action (non-battle). The causative agent is a vehicle traffic accident. Another injury noted within the record was the furuncle (boil) of the arm, which again was an injury unrelated to combat with an armed enemy. Therefore, Board members found insufficient evidence to support award of the PH. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 600-8-22, (Military Awards), prescribes policies and procedures for military awards and decorations, to include the Purple Heart. a. 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 the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record. b. When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury. The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not the sole justification for the award. c. Examples of enemy-related injuries which clearly justify award of the Purple Heart include concussion injuries caused by enemy-generated explosions, and a TBI or concussion that is severe enough to cause: * loss of consciousness * restriction from full duty due to persistent signs, symptoms, or clinical findings * impaired brain functions for a period greater than 48 hours from the time of the concussive incident 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. ABCMR Record of Proceedings (cont) AR20170009822 2 1