RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           8 November 2005
      DOCKET NUMBER:  AR20050008690


      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. Stanley Kelley                |     |Chairperson          |
|     |Ms. Diane J. Armstrong            |     |Member               |
|     |Ms. Delia R. Trimble              |     |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 landed on Normandy Beach on D-Day
and moved forward through Italy.  He claims that when his unit was crossing
a railroad track, a German tank fired on them and the shell landed about 75
to
100 feet in front of them.  He claims something struck him in the left eye
and he is unable to see anything out of his left eye.  He states that he
was assigned to Company E, 179th Infantry Regiment, 45th Infantry Division
at the time of the incident.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 19 November 1946.  The application submitted in this case
is dated 27 May 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 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.  This case is being
considered using reconstructed records, which primarily consist of a
Certification of Military Service (NA Form 13038), Separation Document
(Partially Legible), Office of The Surgeon General (OTSG) Hospital
Admission Record for 1944, Honorable Discharge Certificate, Final Payment
Work Sheet (WD Form 372), and National Personnel Records Center (NPRC)
Letter, dated 16 August 2004.

4.  A Certification of Military Service (NA Form 13038) on file confirms
the applicant served on active duty between 10 April 1943 and 19 November
1946.  A partially legible separation document on file shows he earned the
Army Good Conduct Medal.  This separation document also contains the entry
“None” in the “Wounds Received In Action” block, and the applicant
authenticated the separation document with his signature on the date it was
issued.

5.  An OTSG Hospital Admission Record for 1944 on file shows the applicant
was admitted to a medical treatment facility in the European area in May
1944, and that he was treated for a calculus, renal or ureteral condition.
The OTSG report does not categorize the applicant as a battle casualty, nor
does it indicate the causative agent as enemy forces.

6.  A Final Payment Work Sheet on file shows the applicant was receiving
combat infantry pay on the date of his separation.  An honorable discharge
certificate on file shows the applicant was honorably discharged on 19
November 1946, at Fort Campbell, Kentucky, in the rank of private first
class.

7.  An NPRC letter on file, dated 16 August 2004, shows that NPRC verified
the applicant’s entitlement to the Bronze Star Medal, Combat Infantryman
Badge, Honorable Service Lapel Button, and World War II Victory Medal.
NPRC was unable to verify the applicant’s entitlement to the PH from the
available records.

8.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and
criteria concerning individual military awards.  Paragraph 2-8 contains the
regulatory guidance pertaining to awarding the PH.  It states, in pertinent
part, that in order to award a PH there must be evidence that a member was
wounded or injured as a result of enemy action.  The wound or injury for
which the PH is being awarded must have required treatment by a medical
officer and this treatment must be supported by medical treatment records
that were made a matter of official record.  Paragraph 2-8b(5) contains
examples of injuries or wounds that clearly do not qualify for award of the
PH.  Included in these examples are illnesses or disease not directly
caused by enemy agents.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH was 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 a result of enemy action.  The regulation specifies that
illnesses not directly caused by enemy agents clearly do not qualify for
award of the PH.

2.  The evidence includes a partially legible separation document that
contains the entry “None” in the Wounds Received In Action block, which
would indicate the applicant was never wounded/injured as a result of enemy
action.  The applicant authenticated this document with his signature.  In
effect, his signature was his verification that the information contained
on the separation document, to include the “Wounds Received In Action”
entry, was correct at the time the document was prepared and issued.

3.  The evidence also includes an OTSG Hospital Admission Record from 1944
that confirms the applicant was treated in the European area in May 1944,
for a calculus, renal or ureteral condition.  The OTSG does not indicate
this condition was received as a direct result of, or that it was caused by
enemy action.  Further, the OTSG does not categorize the applicant as a
battle casualty.

4.  The veracity of the applicant’s claim of entitlement to the PH based on
the eye injury he incurred is not in question.  However, absent any
evidence (eye-witness statements, medical treatment records, morning
reports etc.) that corroborates his claim that his eye injury was combat
related, the regulatory burden of proof necessary to support award of the
PH has not been satisfied in this case.  As a result, the applicant’s
request for the PH must be denied in the interest of all those who served
during World War II and who faced similar circumstances.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 19 November 1946, the date of his
discharge.  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 failed to
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

___SK __  ___DJA _  __DRT __  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.




            ____Stanley Kelley_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050008690                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/11/08                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |Y1946/11/19                             |
|DISCHARGE AUTHORITY     |AR 615-365                              |
|DISCHARGE REASON        |Conv of Govnt                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  61   |107.0015                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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