RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 March 2007
	DOCKET NUMBER:  AR20060010951 


	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. Gerard W. Schwartz

Acting Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. Thomas M. Ray

Chairperson

Mr. Jeffrey C. Redmann

Member

Mr. James R. Hastie

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, correction of his Enlisted Record and Report of Separation Honorable Discharge (WD AGO Form 53-55) to show award of two Purple Hearts for wounds received during World War II, campaign credit for duty in Okinawa and Korea, and completion of tank destroyer training school.  He also requests correction of the reason and authority for his discharge.    

2.  The applicant states, in effect, that he was injured by mustard gas at Fort Hood, Texas, which ruined his vision, and has hearing loss caused by the guns used in the tank destroyers.  He also states that he received a blow to the head in Okinawa while working a detail loading a ship with 105mm artillery shells.  He describes the efforts made to obtain medical treatment in Korea.

3.  The applicant provides a copy of his WD AGO Form 53-55; medical treatment record extract for 29 November 1945; and extracts from the Veterans of Foreign Wars magazine.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 27 October 1946, the date of his honorable discharge.  The application submitted in this case was received on 3 August 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 for review.  A fire destroyed approximately 18 million service member's records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, there are sufficient documents available to conduct a fair and impartial review of this specific request. 



4.  The applicant's WD AGO Form 53-55 shows that he was inducted into the Army of the United States on 13 November 1944.  His military occupational specialty was 605 (Heavy Machine Gunner).  He served in the Pacific Theater of Operations with the 48th Field Artillery Battalion from 24 June 1944 until his return to the United States on 23 August 1946.  On 27 October 1946, he was honorably discharged.

5.  Item 32 (Battles and Campaigns) of the applicant's WD AGO Form 53-55, as previously corrected, shows Ryukyus.  

6.  Item 33 (Decorations and Citations) of the applicant's WD AGO Form 53-55, as previously corrected, shows the Asiatic-Pacific Campaign Medal with one bronze service star, the World War II Victory Medal, the Army of Occupation Medal, and the Good Conduct Medal.

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

8.  Item 40 (Reason and Authority for Separation) of the applicant's WD AGO Form 53-55, shows Convenience of the government RR 1-1 Demobilization AR 615-365.

9.  The extract from miscellaneous medical records shows that on 29 November 1945, the applicant was reported as sick, in the line of duty.  However, it does not indicate any proximate cause or treatment.

10.  Army Regulation 600-8-22 (Military Awards) 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 time limitation on requests for award of the Purple Heart. 

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence showing that the applicant was wounded as a result of hostile action.  The injuries that he describes were received in the line of duty during normal training or while on duty in a non-combat situation.   There is an insufficient basis for award of the Purple Heart in this case.

2.  There is no available evidence to show that the applicant attended tank destroyer training or that the reason and authority for the applicant's discharge is incorrect.

3.  The applicant's WD AGO Form 53-55 already shows that he served in Okinawa.  However, there is no available evidence showing that he also served in Korea.

4.  The applicant mistakenly equates being in a location with participating in a campaign and being injured with qualifying for the Purple Heart.

5.  In view of the above, the applicant's request should not be granted.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 27 October 1946, the date of his discharge. 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.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence, 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

__JCR___  __JRH __  _TMR___  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.




__      Thomas M. Ray_________
          CHAIRPERSON



INDEX

CASE ID
AR20060010951
SUFFIX

RECON
 
DATE BOARDED
20070301 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
107.0015
2.

3.

4.

5.

6.