RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060011844 


	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. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Mr. David K. Haasenritter

Member

Ms. LaVerne M. Douglas

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, in effect, award of the Purple Heart. 

2.  The applicant states, in effect, that he was wounded in combat at Normandy during World War II.

3.  The applicant provides a copy of his WD AGO 53-55 (Enlisted Record and Report of Separation Honorable Discharge), dated 31 December 1945; National Archives and Records Administration (NA) Form 13088 (United States of America, Certification of Military Service), dated 10 August 2005; 3 letters from former fellow Soldiers, dated 13 August 2005, 31 July 2005, and 28 July 2005; and Las Vegas, Veterans Administration Medical Center (VAMC), Outpatient Medical Record Progress Notes, dated 14 December 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 31 December 1945, the date of his discharge.  The applications submitted in this case are dated 10 August 2005 and 29 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 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.  The applicant's military service records show that he was inducted into the U.S. Army on 20 January 1943 and entered active service on 27 January 1943.  After completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 345 (Truck Driver, Light).
5.  The applicant's WD AGO Form 53-55 shows in Item 33 (Decorations and Citations) that he was awarded the European-African-Middle Eastern Campaign Medal, Good Conduct Medal, and World War II Victory Medal.  Item 34 (Wounds Received In Action) of this document contains the entry "NONE".

6. There is no evidence in available records that show the applicant was wounded or treated for wounds as a result of hostile action.   In addition, there is no evidence that orders were issued awarding the applicant the Purple Heart.

7.  In support of his application, the applicant provides copies of his WD AGO Form 53-55 and NA Form 13038 that, in pertinent part, document his honorable service in the Army from 20 January 1943 to 31 December 1945 and his service in the European Theater of Operations from 1 November 1943 to 16 December 1945.  The letter from Lieutenant Colonel (LTC) John F. L____ (Army of the United States, Retired) states, in pertinent part, that he was assigned as adjutant of the 533rd Quartermaster Battalion.  He also states that the unit was attached to the 1st Infantry Division as part of Assault Force "O" that landed on Omaha Beach on 6 June 1944.  LTC L____ further states that the applicant "was part of this landing, he was wounded by German shrapnel and was aided by our battalion first aid team on June 6, 1944."  The letter from Mr. Nicholas D'______ states, in pertinent part, that "[u]pon landing on Normandy, June 6th 1944 Pvt. Z_____ received a sharpel (sic) wound of the knee."  The letter from Mr. Bruno A______ states, in pertinent part, "Normandy landing, June 6th 1944 I noticed Pvt. Z_____ with wound on his knee (can't remember which knee) Pvt. Z_____ was treated by medics in the field."  The VAMC Medical Record Progress Notes show, in pertinent part, that the applicant was seen on 14 December 2005 "for service connected injury to right  suffered in Normandy  wounded right knee still has shrapnel right knee."

8.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that he is entitled to award of the Purple Heart because he was wounded in combat on 6 June 1944 at Normandy during World War II.

2.  The Board does not dispute the veracity of the applicant's contention, or the statements of his former adjutant and two former fellow Soldiers.  However, eyewitness statements alone, gathered over 51 years after the date of the incident, provide insufficient evidence to support award of the Purple Heart.  In addition, the VAMC Outpatient Medical Record Progress Note provides insufficient medical evidence to support the applicant's claim.

3.  The Army regulatory guidance governing the criteria for award of the Purple Heart is clear in that the wound for which the award is made must have required treatment by a medical officer and record of the medical treatment for the wound or injury received in action must have been made a matter of official record.

4.  There is no evidence the applicant was awarded the Purple Heart.  The applicant provides no timely official documentary evidence that supports his contention that he was wounded as a result of hostile action.  There is no official documentary evidence in the applicant's military service records that supports his contention that he sustained a wound as a result of hostile action or was treated for a wound by a medical officer.  Therefore, there is insufficient evidence upon which to base award of the Purple Heart in this case.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 December 1945; the date of his separation from active duty.  The ABCMR was not established until 2 January 1947.  Therefore, 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 failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___KAN__  ___DKH_  __LMD__  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.




____Kathleen A. Newman_____
          CHAIRPERSON




INDEX

CASE ID
AR20060011844
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/03/20
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19451231
DISCHARGE AUTHORITY
AR 615-365, RR 1-1 (Demobilization)
DISCHARGE REASON
Convenience of the Government
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
107.0015.0000
2.

3.

4.

5.

6.