RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060011051 


	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

Ms. Anita McKim-Spilker

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Paul M. Smith

Member

Mr. Jerome L. Pionk

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 the records of her deceased husband, the former service member (FSM), be corrected to show award of the Purple Heart and the Prisoner of War Medal.

2.  The applicant states the FSM was supposedly awarded the Purple Heart for wounds received in Germany, but he never received the medal.  She further states the FSM was reported missing in action.  She would like the Purple Heart and Prisoner of War Medal as a legacy for the FSM's grandchildren.

3.  The applicant provides:

	a.  the FSM's WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge);

	b.  an unidentifiable newspaper article stating the FSM had been wounded and awarded the Purple Heart; and

	c.  an unidentifiable newspaper article stating the FSM had been reported missing in action, but was returned to his unit.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 19 April 1946, the date of the FSM’s separation from the Army.  The application submitted in this case is dated 27 July 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.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that some of the FSM's records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.  
4.  The FSM expired on 3 March 1995.  The applicant submitted a previous application on 17 July 1996, but her case was not presented to the Board because the FSM's records were unavailable for review.  

5.  The FSM's record contains a properly constituted WD AGO Form 53-55.  It shows he was inducted into the Army of the United States on 28 October 1942 and reported on 11 November 1942.  He was trained in military occupational specialty 345 (Truck Driver, Light).

6.  The FSM served with the 10th Armored Field Artillery in the European Theater of Operations.  He attained the rank of sergeant. 

7.  Block 33 (Decorations and Citations) of the FSM's WD AGO 53-55 shows award the American Theater Ribbon, the Good Conduct Medal, the European-African-Middle Eastern Campaign Medal with 2 bronze service stars, and the World War II Victory Medal.

8.  Block 30 (Wounds Received in Action) of the FSM's WD AGO Form 53-55 does not show any wounds received in action.  The FSM signed this document authenticating its content.

9.  There are no general orders in the FSM's records to show he was awarded the Purple Heart.  

10.  The applicant provided articles from local newspapers serving the Indianapolis, IN community circa late 1944-early 1945.  One article states the FSM was wounded somewhere in Germany, probably in November 1944.  The second article states the applicant was "missing" from his unit on 6 November, but was now (late December) safe in France.

11.  There is no evidence in the available record to show the FSM was reported missing in action or was held as a POW.

12.  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 by a medical officer, and the medical treatment must have been made a matter of official record.  This regulation further states that there is no time limit on submission of requests for award of the Purple Heart.


DISCUSSION AND CONCLUSIONS:

1.  There are no orders in the FSM's record to show award of the Purple Heart.  The FSM's discharge document, which he authenticated as correct with his signature, is silent on wounds received in action.

2.  There are no medical records in the available military personnel file that show the FSM sustained wounds as a result of hostile action or that show he was treated for wounds sustained as a result of hostile action.

3.  In order to be awarded the Purple Heart, the applicant must show evidence that the FSM's alleged wounds or injuries were sustained as a result of hostile action or show that he was treated for wounds sustained as a result of hostile action.  Other than the applicant's statement that the FSM was wounded in Germany and an article in an unnamed newspaper, there is no supporting evidence in the FSM's record to corroborate the applicant's contentions.  The newspaper articles are not official documents, thus the evidence is insufficient to establish that the FSM was wounded in action by the enemy.

4.  There is no evidence in the official record which shows the FSM was a prisoner of war.  The newspaper article, not an official document, only states he was "missing" for a period of time.

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

6.  Evidence shows the applicant should have discovered the alleged error or injustice now under consideration on 3 March 1995, the date on which the FSM expired; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 2 March 1998.  Although the applicant did not file within the ABCMR's statute of limitations, it is appropriate to waive failure to timely file based on the fact there is no time limitations on requests for award of the Purple Heart. 


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __pms___  __jlp___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



						William D. Powers
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060011051
SUFFIX

RECON

DATE BOARDED
20070313
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
107.0015
2.

3.

4.

5.

6.