RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           18 November 2004
      DOCKET NUMBER:  AR2004104144


      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. James C. Hise                 |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Mr. Hubert O. Fry                 |     |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 states, in effect, he received shrapnel wound to the back
from German artillery fire while serving in Italy during World War II.  He
claims he was treated by a field medical corpsman (MEDIC) and did not
receive the PH.

3.  The applicant provides a Self-Authored Statement and three Third-Party
Statements in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 27 December 1945.  The application submitted in this case
is dated 10 March 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 Service Record (WD AGO Form 24) shows he was inducted
into the Army and entered active duty on 7 February 1943.  It also shows he
served in the European Theater of Operations (ETO) from 2 September 1943
through 19 July 1945 and in the Pacific Theater of Operations (PTO) from
3 September 1945 through 16 December 1945.  The record contains no
indication that the applicant was ever wounded in action or that he was
ever recommended for or awarded the PH.
4.  The applicant’s Official Military Personnel File (OMPF) contains a copy
of a separation physical examination form (WD AGO Form 38), dated 27
December 1945, which contains no indication that the applicant was ever
wounded in action or ever treated for a combat related wound/injury.

5.  On 27 December 1945, the applicant was honorably separated from active
duty.  The separation document (WD AGO Form 53-55) he was issued at the
time confirms he completed a total of 2 years, 10 months and 21 days of
active military service.  Item 34 (Wounds Received In Action) contains the
entry “None” and Item 33 (Decorations and Citations) shows that he earned
the following awards during his active duty tenure:  World War II Victory
Medal, Army Good Conduct Medal, European-African-Middle Eastern Campaign
Medal with
4 bronze service stars, Philippine Liberation Medal, Asiatic-Pacific
Campaign Medal and Distinguished Unit Badge.  The applicant authenticated
this document with his signature in Item 54 (Signature of Person Being
Separated).

6.  In response to Congressional Inquiries, the National Personnel Records
Center (NPRC) conducted searches of the unit morning reports and sick
reports for the applicant’s unit in the ETO for the periods 1 January
through 30 June 1944 and 1 March through 31 May 1945.  This search produced
no entries regarding the wounding or hospitalization of the applicant
during these periods.

7.  The applicant provides three third-party witness statements from
individuals who served with him in the ETO during World War II.  Two of the
individuals attest to the fact the applicant was wounded by German
artillery fire in the
Spring of 1945.  One of the individuals claims he bandaged the applicant’s
wound and they returned to their posts.  The third provides the applicant
advice, but does not provide an eyewitness account of the applicant being
wounded.

8.  Army Regulation 600-8-22 (Military Awards) prescribes the Army’s awards
policy.  Paragraph 2-8 contains guidance on awarding the PH.  It states, in
pertinent part, that each approved award of the PH must exhibit all of the
following factors: wound, injury or death must have been the result of
enemy or hostile act or international terrorist attack; the wound or injury
must have required treatment by medical officials; and the records of
medical treatment must have been made a matter of official Army records.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH and the third-party
witness statements he provided were carefully considered.  However, by
regulation, in order to support awarding a member the PH, it is necessary
to establish that a member was wounded or injured in action, that the wound
required medical treatment, and that the medical treatment was made a
matter of official record.

2.  The evidence of record is void of any indication that the applicant
ever received or was ever treated for a combat related wound/injury that
would have supported award of the PH.  Further, the medical records on
file, to include his separation physical examination are void of any
indication that he received a combat related wound/injury.  Finally, his WD
AGO Form 53-55 contains the entry “None” in Item 34 (Wounds Received In
Action).  This entry indicates the applicant never sustained a wound/injury
as a direct result or that was caused by enemy action.  The applicant
authenticated this separation 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.

3.  The veracity of the applicant’s claim of entitlement to the PH and of
the
third-party witness statements are not in question.  However, absent any
evidence of record to corroborate that the applicant sustained and/or was
treated for a combat related wound/injury, 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 27 December 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

__JCH_ _  ___HOF_  ___LE___  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.




            ____James C. Hise_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004104144                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/11/18                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1945/12/27                              |
|DISCHARGE AUTHORITY     |AR 615-365                              |
|DISCHARGE REASON        |Demobilization                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  61   |107.0015                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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