RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060011145 


	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.




	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 award of the Purple Heart.

2.  The applicant states that on 6-7 March 1945, while assigned to the
65th Reconnaissance Troop in the vicinity of Nohm, Germany, he sustained shrapnel wounds to the leg and arm due to enemy artillery fire.  The original application for a Purple Heart was not submitted because the Medical Aid Station was overtaken by the enemy and all records were destroyed.

3.  The applicant provides a copy of a 17 November 1945 statement from a first lieutenant who indicated the applicant was slightly injured the night of 6-7 March 1945 and a copy of a 22 April 1947 letter from the Veterans Administration (VA), Wilkes-Barre, Pennsylvania.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 9 January 1946, the date of his discharge 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.  The applicant’s military records are not available 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 National Archives and Records Administration issued the applicant a NA Form 13038, Certification of Military Service, which shows the applicant served from 27 April 1943 through 9 January 1946.

4.  The applicant submitted a statement from a first lieutenant, dated 
17 November 1945, which stated that the 65th Reconnaissance Troop was moving into position in the vicinity of “Nohn, Germany,” when enemy artillery opened up.  The applicant, a cook, was riding in the kitchen truck.  The kitchen truck overturned and the applicant was slightly injured.  No record of his injury was made at the Medical Aid Station and no application was submitted by him for the Purple Heart.  

5.  The applicant provided a copy of a VA letter dated 22 April 1947, advising him that he had met the requirements for service connection for a scar, residuals of a gunshot wound, left leg, and left arm; and residuals of trench feet.

6.  Army Regulation 600-8-22 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 are no time limitations for requests for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's official military record is presumed lost.  The only evidence available for the Board's review was submitted by the applicant. 

2.  In order to be awarded the Purple Heart, the applicant must show evidence that the alleged wounds or injuries he sustained were as a result of hostile action or show that he was treated for wounds sustained as a result of hostile action.  Although he submitted a statement from a lieutenant, dated 17 November 1945, the lieutenant does not state whether he was present at the time the applicant was injured or that he personally observed the applicant's injuries.  The statement also does not clearly state whether the kitchen truck in which the applicant was traveling was hit directly by artillery fire which in turn caused it to overturn, or whether the kitchen truck overturned by accident because the troop was moving under blackout conditions.  This statement by itself is insufficient to establish that the applicant was wounded in action by the enemy.

3.  Although the VA awarded the applicant service connection for residuals of a scar which it attributed to a gunshot wounds to the left leg and arm, there is no evidence the applicant received a gunshot wound.  The applicant indicates he was "injured in the arm and leg," and the lieutenant's statement merely indicates the applicant was "injured slightly" when the kitchen truck overturned.  

4.  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.  Therefore, there is insufficient evidence to award the Purple Heart.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 9 January 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.  Although the applicant did not file within the ABCMR's statute of limitations, it is appropriate to waive failure to timely file in this case based on the fact there is no statute of 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
AR20060011145
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.