RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           16 November 2004
      DOCKET NUMBER:  AR2004103787


      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. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Eloise C. Prendergast         |     |Member               |
|     |Mr. Robert Rogers                 |     |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, in effect, award of the Purple Heart (PH).

2.  The applicant’s indicates his argument is presented by counsel.

3.  The applicant provides a support letter from a State of New York
Veterans Counselor in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be awarded the PH.

2.  Counsel states, in effect, that the applicant was the only survivor of
an enemy attack on the tank he was occupying.  He further states the
applicant was returned to the United States on a stretcher and was
ultimately sent to Rhoads General Hospital, Utica, New York, where he was
ultimately discharged from the military.  Counsel further states the
applicant was never awarded the PH for the wounds he received in action and
he should receive the award as soon as possible given he is of advanced age
and in ill health.

3.  Counsel provides no documentary evidence in support of the application.


CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 31 March 1945.  The application submitted in this case was
received 13 February 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 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 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.  This case is being
considered using reconstructed records, which primarily consist of the
applicant’s separation document (WD AGO Form 53-55) and Hospital Records
from the Officer of the Surgeon General (OTSG).

4.  The applicant’s separation document (WD AGO Form 53-55) shows he was
inducted into the Army and entered active duty on 13 May 1942.  He
continuously served until being honorably separated on 31 March 1945, by
reason of Certificate of Disability.

5.  The WD AGO Form 53-55 also shows the applicant served in the European
Theater of Operations (ETO) from 13 June 1944 through 14 January 1945 and
that during his tenure on active duty, he earned the European-African-
Middle Eastern Service Medal with 2 bronze service stars.

6.  Item 34 (Wounds Received in Action) of the WD AGO Form 53-55 contains
the entry “None” and the applicant authenticated the separation document
with his signature in Item 56 (Signature of Person Being Separated).

7.  An OTSG Hospital Admission Record pertaining to the applicant was on
file at the National Personnel Records Center (NPRC).  This document shows
the applicant was admitted to a medical treatment facility in the ETO in
November 1944.  It further shows he was diagnosed with tuberculosis of
pleura and was treated for this disease.  The report does not code the
applicant as a battle casualty and while it does indicate the illness was
incurred in the line of duty, it does not indicate it was the direct result
of or caused by enemy action.  There are no other medical reports on file.


8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part,
that the Purple Heart (PH) 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 required medical
treatment; and the medical treatment was made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH and the supporting
statement provided by counsel were carefully considered.  However, by
regulation, in order to support award of the PH there must be evidence that
the wound or injury on which the award is based was received as enemy
action, that the wound required medical treatment, and that the medical
treatment was made a matter of official record.

2.  The evidence includes a WD AGO Form 53-55 that contains an entry in
Item 34 that indicates the applicant was never wounded/injured as a result
of combat action.  The applicant authenticated this document with his
signature, thereby verifying that the information it contained, to include
the Item 34 entry, was correct at the time the document was prepared and
issued.  Further, the OTSG hospital report on file, while confirming the
applicant was treated for the illness that ultimately resulted in his
disability discharge while still in the ETO, does not indicate this illness
was battle or combat related.

3.  The veracity of counsel’s claim that the applicant is entitled to the
PH based on the illness that led to his disability discharge is not in
question.  However, absent any evidence that indicates this illness was the
direct result of or caused by enemy action, the regulatory burden of proof
necessary to support award of the PH has not been satisfied in this case.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 March 1945.  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 1 January 1950.  However, he 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__ECP__  ___RR___  __MHM _  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.




            ____Melvin H. Meyer ___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004103787                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/11/16                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1945/03/13                              |
|DISCHARGE AUTHORITY     |AR 615-361                              |
|DISCHARGE REASON        |Certificate of Disability               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  61   |107.0015                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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