RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 May 2007
	DOCKET NUMBER:  AR20060015007 


	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.


x

	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 (PH).

2.  The applicant states, in effect, that sometime in May or June 1945, while serving in the Philippines, he was hit on the left side of his neck by shrapnel, which caused permanent paralysis on the left side of his throat.  He claims that he should be entitled to compensation for any additional expense incurred for the treatment of these service related injuries.  He also states that he would like to be assessed for a Post Traumatic Stress Disorder (PTSD) because he continues to have nightmares to the degree of experiencing night sweats and causing undo stress to his wife of fifty-four years.  He claims he still dreams of his fellow Soldier's lying in the mud and bleeding to death. 

3.  The applicant also states that in 1957, he had an operation to remove a benign lump at the site of his neck where the shrapnel had been removed initially.  He claims the concussion of the mortar shell that exploded and injured him caused a major loss of hearing in both of his ears.  He states he received hearing aids from the Department of Veterans Affairs (VA) in 2001; however, they now refuse to treat him for his hearing loss.  He further states that he contracted malaria while stationed in the Philippines, which even today results in his experiencing illness and increased aches in his joints at the changes of seasons.  He finally states that he should be awarded the PH for the injuries he incurred while serving in the Philippines, and this award should be added to his separation document (WD AGO 53-55).

4.  The applicant provides the following documents in support of his application:  WD AGO 53-55; Self-Authored Letter; VA Rating Decision; Third Party Letters; Access to Archival Databases; Mille Lacs Health System Letter; and Final Report (VA Form 2507).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 31 October 1946.  The application submitted in this case is dated 
23 October 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.  This case is being considered using reconstructed records that primarily consist of the applicant’s WD AGO 53-55 and Hospital Admission Document (WD Form 20).

4.  The applicant’s WD AGO Form 53-55 shows he was inducted into the Army of the United States and entered active duty on 18 October 1944.  He continuously served on active duty for 2 years and 14 days until being honorably separated on 31 October 1946.  The separation document also shows he served in the 
Pacific Theater of Operations (PTO) from 11 May 1945 through 22 August 1946, and that he was assigned to Company B, 63rd Infantry Regiment, 6th Infantry Division.  Item 31 (Military Qualifications) shows he earned the Combat Infantryman Badge (CIB) and Sharpshooter Marksmanship Qualification Badge with Rifle (M-1) Bar, and Item 32 (Battles and Campaigns) shows he participated in the Luzon campaign.  Item 33 (Decorations and Citations) shows that during his active duty tenure, he earned the Asiatic- Pacific Campaign Medal with 
1 bronze service star, Philippine Liberation Medal with 1 bronze service star, Army Good Conduct Medal, World War II Victory Medal, and Army of Occupational Medal with Japan Clasp.  

5.  Item 34 (Wounds Received in Action) of the applicant's WD AGO Form 53-55 contains the entry “None”, and the applicant authenticated this document with his signature in Item 56 (Signature of Person Being Separated) on 31 October 1946, the date of his separation.  

6.  The applicant's record contains a hospital admittance document 
(WD Form 20), which shows he was admitted to the hospital on 25 April 1945, for mumps.  It also shows he was returned to duty on 10 May 1945.  There are no treatment records on file that show he was ever treated for a combat related shrapnel wound.  
7.  The applicant provides a VA Rating Decision, dated 21 June 2006, which shows he was granted a 30 percent (%) disability rating for depressive disorder, 10% disability for residuals shell fragment wound to left neck with benign growth removal, 10% disability for malaria, and a 0% disability for bilateral hearing loss.  The VA document does not indicate these ratings were supported by military medical records, or that any of the conditions for which a disability rating was granted were combat related or received as a result of enemy action.

8.  The applicant also provides medical treatment records that show he has a herniated disc and malaria.  He further provides third-party letters from Soldier's who served with him, which indicate he had the mumps and was hospitalized and that he was hit and knocked out in late May.  However these documents give no indication that these injuries were received as a direct result of, or were caused by enemy action.

9.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to award a PH there must be evidence that a member was wounded or injured as a result of enemy action.  The wound or injury for which the PH is being awarded must have required treatment by a medical officer; this treatment must be supported by medical treatment records that were made a matter of official record.  

10.  Paragraph 3-13 of the awards regulation contains guidance on the Bronze Star Medal (BSM).  Paragraph 3-13d (2) states, in effect, that the BSM is authorized to members of the Armed Forces of the United States who, after
6 December 1941, were cited in orders or awarded a certificate for exemplary conduct in ground combat against an armed enemy between 7 December 1941 and 2 September 1945.  This paragraph also stipulates that for this purpose, an award of the CIB is considered as a citation in orders.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of entitlement to the PH and the supporting documents he provided were carefully considered.  However, by regulation, in order to support award of the PH, there must be evidence confirming that the wound for which the award is being made was received as a result of enemy action, that the wound was treated by military medical personnel, and a record of this treatment must have been made a matter of official record.   


2.  The available evidence includes the applicant's WD AGO Form 53-55, which contains the entry "None" in Item 34, which indicates he was never wounded in action.  The PH is not included in the list of awards contained in Item 33, and the applicant authenticated this document with his signature on the date of his separation from active duty.  In effect, his signature was his verification that the information contained on the separation document, to include the Item 33 and Item 34 entries, was correct at the time the document was prepared and issued. 

3.  The veracity of the applicant’s claim that he received a shrapnel wound while serving in the PTO during World War II is not in question.  However, absent any evidence of record (medical treatment records, record entries etc.) that confirms he was wounded in action or treated for a combat related wound by military medical personnel while serving on active duty, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  As a result, this request must be denied in the interest of all those who served during World War II and who faced similar circumstances.  

4.  The applicant is advised that the VA is the proper agency to query regarding compensation for service connected disabilities that are discovered subsequent to separation from the Army.  That agency awards disability ratings and compensation in accordance with its own policies and regulations.  Therefore, any questions he may have regarding compensation for his service connected conditions should be addressed to the VA.  

5.  Records show the applicant should have discovered the alleged error or injustice related to award of the PH now under consideration on 31 October 1946, the date of his separation.  Therefore, based on the date the Board was established, 2 January 1947, the time for him to file a request for correction of any error or injustice expired on 1 January 1950.  He failed to 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.

6.  The evidence does show that based on his having earned the CIB during World War II, the applicant is entitled to the BSM, for his exemplary conduct in ground combat against an armed enemy in the PTO from 11 May 1945 through 
2 September 1945.  The omission of this award from his separation document is an administrative matter that does not require Board action.  Thus, the Case Management Support Division (CMSD), St. Louis, Missouri, will correct his records as outlined in paragraph 3 of the Board Determination Recommendation section below.  


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x _  __x __  __x__  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 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 show his entitlement to the Bronze Star Medal based on his exemplary conduct in ground combat against an armed enemy in the Pacific Theater of Operations during World War II from 11 May 1945 through 2 September 1945; and by providing him a correction to his separation document that includes this change. 




_____x____
          CHAIRPERSON




INDEX

CASE ID
AR20060015007
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/05/03
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1946/10/31
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
107
2.

3.

4.

5.

6.