RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 October 2006
      DOCKET NUMBER:  AR20060001792


      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. W. W. Osborn, Jr.             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John P. Infante               |     |Chairperson          |
|     |Mr. Gerald J. Purcell             |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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 the deceased former service member (FSM) be
awarded the Purple Heart.

2.  The applicant states, “See attached letter.”  In effect, this is a
request that the FSM be awarded the Purple Heart based on that 1993
correspondence.

3.  The applicant provides a copy of the 22 July 1992 letter from the U.S.
Army Reserve Personnel Center (ARPERCEN).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 1 November 1945, the date of the FSM’s discharge.  The
application submitted in this case is dated 24 January 2006.

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.  The available
records consist of a copy of his WD AGO Form 53-55 (Enlisted Record and
Report of Separation-Honorable Discharge) and copies of correspondence from
1953 and 1993 concerning the FSM’s previous attempts to be awarded the
Purple Heart.  However, there are sufficient documents remaining in a
reconstructed record for the Board to conduct a fair and impartial review
of this case.

4.  The FSM enlisted on 9 April 1942 and served in the European Theater of
Operations during the Italian campaigns.  He returned to the United States
and deployed to the Asiatic-Pacific Theater of Operations for several
campaigns.

5.  He was separated as a staff sergeant on 1 November 1945 with an
honorable discharge due to demobilization.  His WD AGO Form 53-55 shows in
item 32 (Battles and Campaigns) that he received campaign credit for the
Eastern Mandates, Western Pacific, Ryukyus, Southern Philippines, Rome-Arno
and Sicily.  Item 32 (Decorations and Citations) shows he was awarded the
Good Conduct Medal, the Asiatic-Pacific Service Medal and the European-
African-Middle Eastern Service Medal and the World War II Victory Medal.
Item 55 (Remarks) shows he was issued an Army Lapel Button.

6.  A 12 July 1949 Disposition Form indicates that medical treatment
records for the FSM at the 5th General Hospital, Oran, Algeria could not be
located.

7.  The FSM wrote a 2 March 1953 letter to The Adjutant General in which he
reported that he was “receiving compensation for a battle incurred injury”
and asked about entitlement to the Purple Heart.  The FSM included a 26 May
1945 memorandum from his commander that listed the FSM’s authorized awards.
 The list did not include the Purple Heart.

8.  Associated correspondence, dated 14 May 1953, indicates that the VA
sent all the FSM’s records to the Office of The Adjutant General (OTAG).

9.  On 22 May 1953 the OTAG ordered all of the FSM’s authorized awards from
the Quartermaster Depot in Philadelphia, listed the authorized foreign
awards that were not issued and indicated where they could be purchased.
The requirement for award of the Purple Heart, that treatment and enemy
origin must be included in the official records was cited and the FSM was
informed that he was not favorably considered for the Purple Heart.

10.  In separate correspondence to the VA, the OTAG indicated that the
FSM’s service medical records were being returned.

11.  In a 22 February 1993 letter the FSM reported that, following Salerno,
he had been treated at the 5th General Hospital in Oran, Algeria, but that
St. Louis had not been able to find any record.  He also noted that the
Veterans Administration (VA) had granted him disability compensation based
upon the documents he had provided and physical examination.  He noted “It
seems to me that the Purple Heart should have been issued based on their
findings, if nothing else.”

12.  The Chief, Special Actions, Veterans Service Directorate of the
ARPERCEN, in a 6 May 1993 letter to a United States Senator, indicated that
the available records  of the FSM [who was erroneously referred to as Mr.
W____ ] failed to show that he had been wounded as a result of enemy
action.

13.  A follow-on letter from the ARPERCEN [the letter cited in the current
application], apologized to the FSM for using the wrong name, but assured
him that the substance of the information was correct.

14.  Title 38, United States Code, sections 310 and 331, permits the VA to
award compensation for a medical condition which was incurred in or
aggravated by active military service.  The VA, in accordance with its own
policies and regulations, awards compensation solely on the basis that a
medical condition exists and that said medical condition reduces or impairs
the social or industrial adaptability of the individual concerned. 
Furthermore, by law, the VA is required to decide any question of doubt in
favor of the veteran.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records
ABCMR) Paragraph 2-9 (Burden of proof) provides that the ABCMR begins its
consideration of each case with the presumption of administrative
regularity. The applicant has the burden of proving an error or injustice
by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The available records show that, as early as 1949, attempts to locate
records to substantiate the FSM’s eligibility for the Purple Heart were
unsuccessful.

2.  This effort was repeated in 1953, when the service medical records that
had been in the custody of the VA were made available to the Army.  Those
records  failed to substantiate his request.

3.  The 1993 correspondence reflects that the available information was
again reviewed and the same conclusion reached.  The 22 July 1993 letter
from the ARPERCEN simply confirms that the information provided earlier
applied to the FSM even though the wrong name, Mr. W___, was cited in the
previous correspondence.

4.  Finally, the fact that the VA awarded the FSM service connection for a
back condition is not helpful.  If a VA medical examination had found
evidence or symptoms and some medical authority asserted that the condition
could have originated while the FSM was in the service, because of the
benefit of the doubt doctrine, the criteria for service connection would
have been met.  Eligibility for the Purple Heart, on the other hand,
requires treatment for a wound sustained as the result of enemy action and
both of those conditions must be a matter of record.

5.  Records show the FSM should have discovered the alleged error or
injustice now under consideration on 1 November 1945, the date of the
discharge. However, the ABCMR was not established until 2 January 1947.
Therefore, the time for the FSM 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 failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JPI____  __KSJ___  __GJP___  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 P. Infante_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001792                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061012                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1. 107.00|                                        |
|2. 142.00               |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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