RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 April 2007
	DOCKET NUMBER:  AR20060012983 


	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. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. John Slone

Chairperson

Mr. David Haasenritter

Member

Mr. John Heck

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 a second award of the Purple Heart (correctly known as the Purple Heart with First Oak Leaf Cluster). 

2.  The applicant states that he was wounded twice by enemy action.

3.  The applicant provides a copy of his WD AGO Form 53-55 (Enlisted Record and Report of Separation); and a letter, dated 10 October 1951, from the Veterans Administration. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 
8 September 1945.  The application submitted in this case is dated 30 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 was inducted on 7 April 1943.  He served in the European Theater of Operations from approximately 5 September 1944 through 16 June 1945 and was honorably discharged on 8 September 1945. 

5.  The applicant’s WD AGO Form 53-55 shows the Purple Heart and the European-African-Middle Eastern Campaign Medal with three bronze service stars as authorized awards.  Item 34 (Wounds Received in Action) on his WD AGO Form 53-55 shows the entry, “19 Feb 1944 European Theater.” 

6.  There is no evidence of record which shows the applicant was wounded a second time as a result of hostile action during World War II.

7.  In support of his claim, the applicant provided a 10 October 1951 letter from the Veterans Administration which states, in pertinent part, that the 20 percent evaluation of his service-connected left leg condition was continued and that his service-connected wound, right lower leg, was evaluated as no percent disability. 

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, and the medical treatment must have been made a matter of official record.  The bronze oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Purple Heart.

9.  Army Regulation 600-8-22 provides, in pertinent part, for award of the World War II Victory Medal.  It is awarded for service between 7 December 1941 and 31 December 1946, both dates inclusive.

DISCUSSION AND CONCLUSIONS:

1.  The Veterans Administration letter provided by the applicant does not show that he was wounded twice as a result of hostile action during World War II.  This letter states that the applicant was granted service-connected disability for a left leg condition and a right leg wound.

2.  The applicant’s WD AGO Form 53-55 shows he was wounded in action on 
19 February 1944 in the European Theater of Operations.  There is no evidence of record which shows that he was wounded as a result of hostile action on any date other than 19 February 1944.  Therefore, there is insufficient evidence on which to base a second award of the Purple Heart in this case.

3.  The applicant served a period of qualifying service for award of the World War II Victory Medal.

4.  Evidence shows that the applicant’s records contain an administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 3 of the BOARD DETERMINATION/RECOMMENDATION section below.

5   Records show the applicant should have discovered the alleged error now under consideration on 8 September 1945; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 1 January 1950 
(3 years after the Board was established on 2 January 1947).  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 statute of limitations on requests for award of the Purple Heart.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

JS_____  ___DH___  ___JH___  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.

3.  The Board determined that an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to add the World War II Victory Medal to his WD AGO Form 53-55.



_John Slone___________
          CHAIRPERSON




INDEX

CASE ID
AR20060012983
SUFFIX

RECON

DATE BOARDED
20070419
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
107.0015
2.
107.0000
3.

4.

5.

6.