RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            20 APRIL 2006
      DOCKET NUMBER:   AR20050010776


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Mr. Jeffrey Redmann               |     |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 that he be awarded the Purple Heart.

2.  The applicant states, in effect, that he should have been awarded the
Purple Heart for a head injury he sustained in combat when an 88mm shell
hit the vehicle he was in and caused it to turn over.  He goes on to state
that he was treated for that injury and that it was misdiagnosed as “Bells
Palsy”.

3.  The applicant provides letters and consultations from physicians and a
copy of a clinical record from November 1945 diagnosing him as having
Bell’s Palsy and other documents from his medical records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 28 March 1946.  The application submitted in this case is dated
20 July 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.

4.  He was inducted on 21 January 1944 and entered active duty in Buffalo,
New York, on 28 January 1944.  He completed his training as a light truck
driver and departed for the European Theater of Operations (ETO) on 11
November 1944.  He participated in the Ardennes, Central Europe, and
Rhineland campaigns.

5.  Documents provided by the applicant from his medical records show that
the applicant was seen at the aid station at Camp Lucky Strike on 9
November 1945 with a complaint of paralysis of the facial muscles.  He was
serving with Company K, 354th Infantry Regiment in the rank of private
first class at that time and was transferred to the United States Army
Hospital Point for admission.  On 12 November 1945, he was transferred to
the 166th General Hospital.

6.  An abbreviated clinical record provided by the applicant indicates that
approximately one week before he was admitted without known cause, he was
unable to whistle and on closer inspection found the right side of his face
paralyzed.  He had been in previous good health and no progression since
first noticed.  He was told to apply heat to the right side of his face
daily.

7.  Another document dated 24 July 1945 indicates that he was received at
the 20th Field Hospital in Germany and was being held for air evacuation to
a general hospital.

8.  The applicant departed the ETO on 12 March 1946 and was transferred to
Fort Dix, New Jersey, where he was honorably discharged in the rank of
corporal on 28 March 1946.  His report of separation (WD AGO Form 53-55)
indicates in item 34, under “Wounds Received in Action”, the entry “None”.
The applicant was awarded the European-African-Middle Eastern Campaign
Medal, the Good Conduct Medal, the World War II Victory Medal, the Combat
Infantryman Badge and the Bronze Star Medal.

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part,
that the Purple Heart is awarded for a wound sustained while in action
against an enemy or 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.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the actual diagnosis of the applicant’s illness or
injury, the applicant has failed to show through the evidence submitted
with his application or the limited evidence of record, that his
illness/injury was the resultant cause of enemy action.

2.  The documents provided by the applicant clearly show that approximately
1 week before admission and without known cause, the applicant noticed he
was unable to whistle and on closer inspection found the right side of his
face paralyzed.  This in itself does not suggest that it was the result of
enemy action.

3.  Additionally, there is no evidence in the available records to document
his injury in a vehicle as he claims.  Therefore, in the absence of such
evidence, there appears to be no basis to award him the Purple Heart at
this time.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 March 1946, 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.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___LS___  ____LF _  ___JR___  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.




                                  ______Linda Simmons________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050010776                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060420                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19450509                                |
|DISCHARGE AUTHORITY     |AR 615-365                              |
|DISCHARGE REASON        |DEMOB                                   |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |61/PH                                   |
|1.107.0015              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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