MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 06 JUNE 2002
         DOCKET NUMBER: AR2002066489

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Stanley Kelley		Chairperson
Mr. John T. Meixell		Member
Mr. Thomas E. O’Shaughnessy, Jr.		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)

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APPLICANT REQUESTS: Award of the Purple Heart.

APPLICANT STATES: That a VA rating decision, which he provides with his application, shows that he was awarded a service connected disability rating for his right leg condition and hearing loss.

EVIDENCE OF RECORD: The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973. Information herein was obtained from the applicant and from alternate sources.

The applicant’s WD AGO Form 53-55 (Enlisted Record and Report of Separation) shows that he was inducted into the Army on 18 January 1943, entered on active duty on 25 January 1943, and served in the European Theater of Operations (ETO) during World War II. That form indicates that he was a heavy machine gunner with the 551^st Field Artillery Battalion. He served in the ETO from 21 March 1944 to 15 November 1945. He was discharged on 1 December 1945. WD AGO Form 53-55 shows that the applicant was awarded the European-African-Middle Eastern Campaign Ribbon with 5 bronze service stars, the Good Conduct Ribbon, the Victory Medal, and the American Theater Ribbon. It does not show award of the Purple Heart. Item 34 (Wounds Received in Action) of that form does not contain an entry.

Item 11 (List all significant diseases, wounds, and injuries) on WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty or Retirement) shows that the applicant had tuberculosis at Fort Bragg, North Carolina in December 1943 and that he injured his right leg and was hospitalized at the 108^th General Hospital in France in March 1945. The record of his physical examination shows that he had arthritis, right ankle-mild, not considered disabling; pes planus; and defective hearing in his left ear.

A handwritten note indicates that the applicant fell off a truck on 3 February 1945 while unloading ammunition and injured his right ankle. The injury was incurred in Belgium. A 5 February 1945 medical record shows that the applicant accidentally injured his right tibia on 3 February 1945 in Belgium when he fell from a truck while unloading ammunition. A 24 February 1945 note indicates that the applicant was treated for a hearing loss and for a sprain to his right ankle.

A 9 July 1946 VA rating sheet shows that the applicant was awarded a 10 percent disability rating for arthritis, right ankle, mild, secondary to trauma and a 10 percent rating for defective hearing, left ear 0/15, right 15/15 with otitis media, chronic, catarrhal. A 21 May 1948 VA rating sheet provides the same information.


In a 11 January 1995 letter to a Member of Congress (MC) the applicant requested assistance in appealing a decision of the VA denying his claim for increased service connected disability compensation. The applicant stated that an explosion damaged both his eardrums and injured his right leg during the Battle of the Bulge in December 1944, and that he spent six or eight weeks in a hospital in Paris. He stated that he was awarded a 60 percent disability compensation on 1 December 1945, and his compensation was later reduced to 30 percent. He stated that he decided to appeal the reduction in compensation from 60 percent to 30 percent.

On 24 January 1995 the applicant’s son requested assistance from an MC in obtaining the Purple Heart for his father.

On 11 January 1996 in response to an inquiry from an MC, the Army Reserve Personnel Center at St. Louis informed the applicant that a review of The Surgeon General’s records shows that he was hospitalized for an injury that occurred when he fell from a vehicle while on a work detail, and that there was no authority to award the Purple Heart for an accidental injury.

Information from the hospital admission cards created by the Office of The Surgeon General shows that the applicant was admitted to a hospital on 4 February 1945 because of a non-battle injury. That information indicates that he was diagnosed as having a wound, lacerated with no nerve or artery involvement to his tibia, lower extremity; and deafness, unspecified. It shows that he fell from a vehicle and was injured while on a work detail. He spent 29 days in the hospital.

A health record research project, commonly referred to as the "SGO Files", involved transposing the hospital admission card data from the periods of World War II and the Korean conflict onto magnetic tape. In 1988 the National Research Council made these tape files available to the National Personnel Records Center (NPRC). The availability of the information to the NPRC received considerable publicity by the various veterans service organizations. It was widely believed that these tapes would become a valuable substitute for the records lost in the NPRC fire of 1973.

Army Regulation 600-8-22 provides 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.

The 551^st Field Artillery Battalion was awarded the Army of Occupation Medal for the period 2 May to 29 September 1945.

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. Notwithstanding the applicant’s contentions, the available evidence indicates that the applicant accidentally injured his right leg when he fell off a truck in February 1945. There is also no evidence to show that his hearing loss was the result of enemy action. The VA rating decisions fail to show that his injuries were as a result of enemy action. The “SGO” file does not show that he was wounded as a result of enemy action. The report of physical examination fails to show that he was wounded in action. There is insufficient evidence to award the applicant the Purple Heart.

2. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.

4. 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.

NOTE: The Army Review Boards Agency in St. Louis will be requested to correct the applicant’s records to show award of the Army of Occupation Medal with Germany clasp.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__SK ___ __JTM___ __TEO__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002066489
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020606
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.	61
3.
4.
5.
6.