RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 March 2007
	DOCKET NUMBER:  AR20060012321 


	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, in effect, that he is service-connected for a gunshot wound to the right arm.  He contends that he was shot in 1946 in Cavite, Philippines. 

3.  The applicant provides a copy of his Certification of Military Service; a copy of a letter from the National Personnel Record Center, dated 16 June 2006; and a copy of a medical record from the Department of Veterans Affairs (DVA) Pacific Islands HCS, dated 16 August 2006 and 7 June 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 7 June 1947, the date of his discharge from the Army.  The application submitted in this case is dated 21 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 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 to conduct a fair and impartial review of this case.  

4.  The applicant's record does contain a properly constituted WD AGO Form
53-55 (Enlisted Record and Report of Separation.)  This form shows he was inducted into the Army of the United States on 12 March 1945.  




5.  This form also shows that he was assigned to Company C, 70th Anti-Aircraft Artillery Gun Battalion in the Pacific Theater of Operations during World War II.

6.  The applicant received the Army Good Conduct Medal, the Philippine Liberation Ribbon, the World War II Victory Medal, and the Asiatic-Pacific Campaign Medal.

7.  Block 34 (Wounds Received in Action) of the applicant's WD AGO Form
53-55 does not show any wounds received in action.  The applicant signed this document authenticating its content.

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

9.  The applicant submitted a copy of a letter from Military Personnel Record, NPRC indicating the medals to which he is entitled.  The Purple Heart is not shown on this list.

10.  The applicant provided a DVA report showing that he is service-connected for a forearm muscle injury, rated 30 percent disabling.  The medical report shows he has occasional right hand numbness, the side of his service-connected war injury.  

11.  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.  The applicant requests award of the Purple Heart for wounds received in 1946 in the Philippines.

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



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

4.  In order to be awarded the Purple Heart, the applicant must show evidence that his 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 he was shot in the right arm in 1946 there is no supporting evidence in his record to corroborate his contentions.  Further, World War II ended in August 1945; perhaps the applicant is mistaken in the date of his alleged wound.  Although the DVA service-connected for a forearm muscle injury, this action is insufficient as a basis for award of the Purple Heart.  

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.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 7 June 1947; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
6 June 1950.  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

__lds___  __jtm___  __rsv___  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.



							Linda D. Simmons
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060012321
SUFFIX

RECON

DATE BOARDED
20070322
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
107.0015
2.

3.

4.

5.

6.