RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        09 AUGUST 2005
      DOCKET NUMBER:  AR20040011660


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Ms. Barbara Ellis                 |     |Chairperson          |
|     |Mr. Kenneth Wright                |     |Member               |
|     |Mr. Patrick McGann                |     |Member               |

      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.

2.  The applicant states he sustained a broken left eardrum while loading a
105 howitzer which backfired.  He states he was taken “off line” for 2
days, but refused medical treatment because he did not want to leave his
unit.  He states that his records will show what his hearing was when he
went into the service and what it was when he left the service.  He states
that he always thought his hearing would eventually return, but it never
did and now he would like to receive his Purple Heart.

3.  The applicant provides copies of physical examination from his service
medical records and an authorization form for the Veterans Administration
to release records on which the applicant has identified two individuals
who had provided statements regarding his injury.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 25 November 1945.  The application submitted in this case
is dated
21 December 2004.

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 limitations 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 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 that the
applicant’s records were lost or destroyed 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 applicant’s separation document indicates that he was inducted and
entered active duty on 6 March 1942.  His induction physical examination
notes a hearing score of 20/20 for both the right and left ears.

5.  The applicant arrived in the European-African-Middle Eastern Theater of
Operations in September 1943 where he served as a cannoneer with a field
artillery unit.  He returned to the United States in November 1945 and was
honorably discharged on 25 November 1945.

6.  His separation physical examination, conducted on 24 November 1945
notes a hearing score (whispered voice) of 15/15 for both the left and
right ears.  That same report noted no “illnesses, injuries, operations or
hospitalization” and no physical complaints.  Item 34 (wounds received in
action) on the applicant’s separation document, reflects “NONE.”

7.  On 17 August 1950 the applicant underwent a physical examination for
the purpose of returning to military service.  The examining physician
noted that the applicant’s left eardrum was “slightly retracted” but that
he was able to hear both a whispered voice (wv) and spoken voice (sp) at 15
feet.  His hearing score is recorded as 15/15 for wv and 15/15 for sv for
both ears.  He had no physical profile for his hearing.

8.  During a 21 November 1950 physical examination, for the purpose of
separation, the applicant stated that he believed he had some hearing loss
in the left ear and that he had first observed this in 1944 when he was a
member of a gun crew and had an injury from a blast to the left hear.  A
subsequent hearing tests resulted in a score 15/15 for sv for both ears,
but a score of 12/15 for wv in the right ear, and 7/15 of wv in the left
ear.  On the 21 November 1950 physical examination he was given a “2”
profile for hearing.  He was determined to be medically qualified for
separation under the provisions of Army Regulation
615-362.

9.  An enlisted record, provided by the applicant notes that he served in
the military again between March and September 1948 when he was discharged
because of an “incompatible occupation.”

10.  Although the applicant indicated on one of the documents provided with
his application that there were two individuals who provided statements
concerning the incident during which his eardrum was broken, no statements
were included with his application or in records available to the Board.


11.  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 by a medical officer, and the medical treatment must have been
made a matter of official record.

12.  Army Regulation 600-8-22 (Military Awards), provides, in pertinent
part, that the European-African-Middle Eastern Campaign Medal is awarded
for service within the European African-Middle Eastern Theater between
7 December 1941 and 8 November 1945.  This medal is awarded to any service
member who was permanently assigned in the theater, who was in a passenger
status or on temporary duty for 30 consecutive days or 60 nonconsecutive
days, or who was in active combat against the enemy and was awarded a
combat decoration, or who was furnished a certificate by the commanding
general of a corps or higher unit or independent force showing that he
actually participated in combat.

13.  The applicant’s 1945 separation document does not reflect entitlement
to the European-African-Middle Eastern Campaign Medal in spite of the fact
that he served in that theater for nearly 2 years.  The separation document
does indicate that he participated in five designated campaigns while
overseas, however, his campaign participation, reflected as 5 bronze
service stars, was inadvertenly assigned to the applicant’s American
Theater Campaign Medal when in fact his campaign participation should have
been reflected as one silver star (in lieu of 5 bronze service stars) on
his European-African-Middle Eastern Campaign Medal.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant’s hearing ability for the whispered voice at 15
feet may have deteriorated between his August 1950 and November 1950
physical examination, and that his eardrum was slightly retracted, there is
no medical evidence which confirms that he was wounded or injured as a
result of hostile action during World War II.  The applicant himself admits
that he did not receive medical treatment at the time.

2.  The basic requirements for award of the Purple Heart include evidence
that an individual was wounded or injured as a result of hostile action,
that such wound or injury required treatment by a medical officer, and that
the treatment be made a matter of official record.  In the absence of the
preceding information, there is no basis to award the applicant the Purple
Heart.



3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 November 1945, the date of his
separation from active duty.  The ABCMR was not established until 2 January
1947.  As a result, the time for the applicant to file a request for
correction of any error or injustice expired on 1 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 the failure to timely file.

4.  Evidence shows that the applicant’s records contain administrative
error which does not require action by the Board.  Therefore,
administrative correction of the applicant’s records will be accomplished
by the Case Management Support Division (CMSD), St. Louis, Missouri, as
outlined by the Board in paragraph 3 of the BOARD
DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___BE __  ___KW__  ___PM __  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.



3.  The Board determined that administrative error in the records of the
individual should be corrected.  Therefore, the Board requests that the
CMSD-St. Louis administratively correct the records of the individual
concerned to show that he is entitled to the European-African-Middle
Eastern Campaign Medal and that the 5 bronze service stars incorrectly
attached to his American Theater Campaign Medal be attached to his European-
African-Middle Eastern Campaign Medal and correctly identified as one
silver service star.


                                  ______Barbara Ellis_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR200400011660                          |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050809                                |
|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.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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