RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            23 November 2005
      DOCKET NUMBER:  AR20050003165


      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.  Luis Almodova                |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Mr. Larry J. Olson                |     |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, that he be awarded the Purple Heart.

2.  The applicant states, in his application, in effect, that he has been
receiving a ten percent disability for over 40 years; yet, he has no Purple
Heart.

3.  In an undated, self-authored letter to the Board, the applicant states,
in effect, that he has a problem that won't go away.  He believes he is
entitled to award of the Purple Heart and he would like to have it before
he dies.

4.  In this self-authored letter, the applicant states, in effect, that in
either 1944 or 1945 while entering a foxhole, his commander, a lieutenant,
and he came under fire from a German battery.  One of the rounds hit in
their vicinity.  The charge picked him up and hurled him ten to fifteen
feet away and he wound up against a tree.  After ten or fifteen minutes, he
recovered and went back to the foxhole to help the lieutenant.  The fact
that his head hurt did not bother him.  He was doing his duty.  The
applicant states he was examined by the medics.  He had no blood on him so
he was put back on the line until the war's end.

5.  The applicant provided only a self-authored letter in support of his
request for award of the Purple Heart.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 9 December 1945.  The application submitted in this case is
dated 22 February 2005.

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 lost or destroyed in the National
Personnel Records Center fire of 1973.  Information herein was obtained
from the applicant's enlisted record and report of separation and from
other official Army sources.

4.  The applicant was inducted on 26 September 1942 and entered service at
Fort Jay, New York, on 10 October 1942.  The applicant was honorably
discharged for the convenience of the Government, under the provision of
Army Regulation (AR) 615-365, at demobilization, in the grade of Staff
Sergeant on 9 December 1945.

5.  The applicant's WD AGO Form 53-55, Enlisted Record and Report of
Separation, Honorable Discharge, with an effective date of 9 December 1945
shows, in Item 33 (Decorations and Citations), he was awarded the Good
Conduct Medal, the European-African-Middle Eastern Campaign Medal; the
American Service Medal [correctly known as the American Campaign Medal];
and the World War II Victory Medal.  On 29 October 2004, as a result of an
ABCMR Proceedings, additional awards – the Bronze Star Medal; the Silver
Star; and the Army of Occupation Medal, with Germany Clasp, were added to
the applicant's WD AGO Form 53-55. The applicant was also awarded three
bronze service stars, which were to be added to his European-African-Middle
Eastern Campaign Medal, to denote his campaign participation credit.  The
Purple Heart is not shown.

6.  Item 34 (Wounds Received in Action), of the applicant's WD AGO Form
53-55, shows the entry, "None."

7.  There are forty-seven medically-related document in the applicant's
service personnel records, including a copy of an Armed Forces D.S.S. Form
221, Report of Physical Examination and Induction, dated 23 September 1942;
a WD AGO Form 38, Report of Physical Examination of Enlisted Personnel –
Prior Discharge, Release from Active Duty or Retirement, dated 8 December
1945; and a WD AGO Form 284, Request for Clinical Records, dated 13 August
1946.

8.  Item 11 of the WD AGO Form 38, which required entry of all significant
diseases, wounds, and injuries, contains the following entry:  "No Malaria
or Syphilis or Dysentery / Sinus-Jun 44 – S. H. Cp Breckenridge, Ky.1
week."  The applicant was diagnosed to have myopia (with corrected vision)
and experienced sinus problems.  There is no indication of any head trauma
or injury recorded on this form.  The applicant met the physical and mental
standards for discharge and was discharged.

9.  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.  It is
estimated that the SGO files document 95 percent of all hospitalized battle
casualties from World War II and the Korean War.  A search of these files
shows the applicant was diagnosed with sinusitis at Camp Breckenridge and
was hospitalized at that location for treatment in August 1944.  An SGO
files report to indicate the applicant received a head wound or another
injury inflicted by the enemy was not found in this data base.

10. On 19 December 1994, the applicant was notified, after he sought the
assistance of his Member of Congress (MOC), that a review of his medical
and other military records failed to show he was wounded as a result of
enemy action.

11.  On 27 October 2001, the applicant applied to this Board for award of
the Purple Heart.  The applicant's request was administratively closed
because his records could not be located and no documentary evidence was
available upon which to arrive at a fair and equitable decision.  The
applicant's reconstructed records have since been found and therefore, his
request for award of the Purple Heart can be responded to.

12.  The applicant's WD AGO Form 53-55, shows no award of the Purple Heart
in block 33.  The separation document shows the entry, "None" in Block 34.
The applicant provided no orders awarding him the Purple Heart.  The
applicant authenticated the WD AGO Form 53-55 in his own hand and affixed
his thumb print in the appropriate space, on the date of his discharge from
the Army, attesting that the information recorded on the form was, to the
best of his knowledge, accurate and complete.

13.  AR 600-8-22 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, and the
medical treatment must have been made a matter of official record.  This
regulation also provides that there is no statute of limitations on
requests for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  There is insufficient evidence to support the applicant's contention
that he was wounded in action as a result of enemy action.
2.  There are forty-seven medically-related documents in the applicant's
service personnel records, including a Report of Physical Examination and
Induction and a copy of his Report of Physical Examination of Enlisted
Personnel – Prior Discharge, Release from Active Duty or Retirement.  There
is no evidence that the applicant sustained a head wound or injury to the
head while he served on active duty during World War II.

3.  In the absence of evidence to show that the FSM was wounded in action
and he received medical treatment for the wounds, he is not entitled to
award of the Purple Heart and to have it added to his WD AGO Form 53-55.

4.  Records show the applicant should have discovered the alleged error
or injustice now under consideration on 9 December 1945, the date of his
separation from active duty.  However, 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.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_JNS___  __PM____  ___LJO__  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.




            _____John Slone____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20030003165                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/11/23                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  46   |107.0000                                |
|2.   61                 |107.0015                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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