RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: December 2, 2003
         DOCKET NUMBER: AR2003090109

         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
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Patrick H. McGann		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, that the Purple Heart (PH) be added to his record.

2. The applicant states, in effect, that a PH he earned was left off his separation document (WD AGO Form 53-55).

3. The applicant provides a copy of a newspaper article that indicates he was among seven Oklahoma soldiers that had been wounded in action.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of his record by adding a PH that he earned during his tenure on active duty, which ended on 22 May 1945. The application submitted in this case is dated 24 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’s military records were 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 that the applicant’s records were lost in that fire. However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

4. The WD AGO Form 53-55 issued to the applicant on the date of his discharge shows that he was inducted into the Army of the United States and entered active duty on 15 April 1941. He continuously served on active duty until being honorably separated on 22 May 1945.

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5. The applicant’s WD AGO Form 53-55 also shows that he served in the Pacific Theater of Operations (PTO) from 26 February 1942 through 13 May 1945, and that he was assigned to Company A, 46th Engineer Construction Battalion. It also shows that he participated in the Southern Philippines, New Guinea, Papuan, and East Indies campaigns of World War II.

6. The applicant’s WD AGO Form 53-55 further shows that he earned the following awards during his tenure on active duty: Asiatic-Pacific Service Medal with 4 bronze service stars and bronze arrowhead; Good Conduct Medal; American Theater Service Ribbon; American Defense Service Ribbon; Distinguished Unit Citation; and Philippine Liberation Ribbon with 2 bronze service stars. Item 34 (Wounds Received in Action) of this document contains the entry “None.”

7. The applicant’s record contains a copy of a DA Form 1577, dated
25 November 1981, issued by the Army Reserve Personnel Center, St. Louis, Missouri. This document shows that he was reissued the awards he earned while serving on active duty and that he received the World War II Victory Medal, which had not been previously entered on his WD AGO Form 53-55. This document also contained a note that indicated that the applicant was entitled to the Philippines Presidential Unit Citation Badge. The PH was not included as one of the awards issued at this time.

8. A search of information from hospital admission cards created by the Office
of The Surgeon General (OTSG) of the Army for the period 1942 through
1945 produced one admission record for the applicant. This revealed that the applicant was admitted to a medical facility in the Southwest Pacific in June 1944 for a diagnosed condition of Rhinitis, which is a reaction that occurs in the eyes, nose and throat when airborne irritants (allergens) trigger the release of histamine. There is no indication that this medical condition was battle or combat related. No other treatment records for the applicant were on file.

9. In connection with the processing of this case, a member of the Board staff also reviewed the unit historical records of the applicant’s unit that are maintained at the National Archives. This search failed to produce any evidence showing that the applicant was ever wounded in action or that he received the PH.

10. The newspaper article extract provided by the applicant simply indicates that the applicant was among seven soldiers from Oklahoma that were wounded in action. The article provides no other facts and circumstances in regard to where and how the applicant was wounded.

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11. Army Regulation 600-8-22 (Military Awards) prescribes the Army’s awards policy. Paragraph 2-8 contains guidance on awarding the Purple Heart. It states, in pertinent part, that the PH is authorized to members who are wounded in action. It further defines a wound as an injury to any part of the body from an outside force or agent sustained in action. It also stipulates that the wound for which a PH is being awarded must have required treatment by a medical officer, and the records of medical treatment for the wound or injury for which the PH is being awarded must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1. The evidence of record and independent evidence provided by the applicant fails to support his claim of entitlement to the PH. By regulation, in order to support award of the PH, there must be evidence showing that the soldier was wounded or injured in action, that the wound for which the award is being made required treatment by military medical personnel and this treatment must have been made a matter of official record.

2. The evidence of record provides no indication that the applicant was wounded in action, that he was ever treated for a wound or injury that he received as a direct result of or that was caused by enemy action, or that he was awarded the PH. The only medical treatment record on file documents a non-combat related illness.

3. Absent any evidence of record or independent evidence to corroborate the information contained in the newspaper article extract provided by the applicant, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case. As a result, there is an insufficient evidentiary basis upon which to support granting the requested relief.

4. The records show the applicant should have discovered the error or injustice now under consideration on 22 May 1945, the date of his separation from active duty. Therefore, based on the date the Board was established, 2 January 1947, the time for the applicant to file a request for correction of any error or injustice expired on 2 January 1950. 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.

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5. However, the evidence does show that the applicant’s record contains an administrative error that does not require action by the Board. Therefore, administrative correction of his record will be accomplished by the Army Review Boards Agency (ARBA) Support Division, St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__PM___ ___MM__ __FE___ DENY APPLICATION

1. The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not 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.

2. The Board determined that an administrative error in the records of the individual concerned should be corrected. Therefore, the Board requests that the ARBA Support Division-St. Louis administratively correct the records of the individual concerned to show he is entitled to the World War II Victory Medal and the Philippines Presidential Unit Citation Badge; and by issuing him a corrected separation document that includes these awards.




                  Fred N. Eichorn
                  CHAIRPERSON

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INDEX

CASE ID	AR2003090109
SUFFIX
RECON
DATE BOARDED	2003/11/DD
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1945/05/22
DISCHARGE AUTHORITY	AR 615-365
DISCHARGE REASON	Demobilization
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 61	107.0015
2. 46	107.0000
3.
4.
5.
6.