RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 12 June 2007
DOCKET NUMBER: AR20060017712
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.
Ms. Catherine C. Mitrano
Director
Mr. Dean L. Turnbull
Analyst
The following members, a quorum, were present:
Ms. LaVerne M. Douglas
Chairperson
Mr. Edward E. Montgomery
Member
Ms. Rea M. Nuppenau
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 that his records be corrected to show the award of the Purple Heart.
2. The applicant states, in effect, that in 1944 enemy fire hit their 50 millimeter mortar and their gunner was killed. He states he was thrown into a foxhole and knocked unconscious. He has hearing problems, the muscles in both shoulders are injured, and he still has powder burns on his hands. He states that he was treated by the Battalion Aide station.
3. The applicant provides a copy of his WD AGO Form 53-55 (Enlisted Record and Report of Separation) and a copy of a letter from the Department of Veterans Affairs (DVA), dated 14 December 2006.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged injustice which occurred on 7 November 1945. The application submitted in this case is dated
13 December 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 applicants failure to timely file.
3. The applicants military personnel records were lost or destroyed in a fire at the National Personnel Records Center in 1973. The records available to the ABCMR were provided in part by the applicant and also obtained from alternate sources. However, the primary record considered by the Board is the applicants WD AGO Form 53-55.
4. The available records show the applicant was inducted into the Army of the United States on 27 February 1943 and entered active duty on 6 March 1943. He served in military occupation specialty 746 (Automatic Rifleman) in North Africa during the period 9 January 1944 through 30 August 1945.
5. He was honorably discharged from active duty for the convenience of the government due to demobilization on 7 November 1945, after serving 2 years,
8 months, and 2 days of active service.
6. Item 33 (Decorations and Citations) shows the applicant was awarded the Bronze Star Medal, Good Conduct Medal, World War II Victory Medal, and European-African-Middle Eastern Campaign Medal with 3 bronze service stars. However, it does not show he was awarded the Purple Heart.
7. Item 34 (Wounds Received in Action) contains the entry "None."
8. There are no medical records in the applicant's official military personnel file to show he sustained wounds as a result of hostile action or to show he was treated for wounds sustained as a result of hostile action.
9. There are no general orders in the available records to show the applicant was awarded the Purple Heart.
10. 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.
11. A review of the applicant's reconstructed records do not indicate entitlement to additional awards and decorations not shown in item 33 of his WD AGO Form 53-55.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that he is entitled to an award of the Purple Heart.
2. There are no general orders that show the applicant was awarded the Purple Heart. There is no evidence in his available records which shows he was wounded or injured as a result of hostile action or treated by a medical officer for his wounds.
3. In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit sufficient evidence that would satisfy this requirement; therefore, the applicant is not entitled to award of the Purple Heart.
4 Records show the applicant should have discovered the alleged error or injustice now under consideration on 7 November 1945, the date of his separation from active duty. However, 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. 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
___lmd__ ___rmn__ ___eem__ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that it was appropriate to waive failure to timely file in this case.
2. The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determines the overall merits of this case are insufficient as basis for correction of the records of the individual concerned to show award of the Purple Heart.
_________LaVerne M. Douglas______
CHAIRPERSON
INDEX
CASE ID
AR20060017712
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
20070612
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
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6.
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