RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 February 2007
      DOCKET NUMBER:  AR20060009836


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |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, that his 22 June 1945 separation
document (WD AGO Form 53-55) be corrected by adding an entry to Item 34
(Wounds Received In Action) to show he was wounded in action on 23 March
1943.

2.  The applicant states, in effect, he was wounded clearing weapons
captured from German Soldiers.  He claims the last weapon he cleared was
bobby trapped and exploded.

3.  The applicant provides a medical treatment record and Congressional
Inquiry in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 28 February 1971, the date he separated from active duty
and reverted to retired status.  The application submitted in this case is
dated 10 July 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 record shows that he was last released from active duty
and reverted to retired status on 28 February 1971.  The separation
document
(DD Form 214) he was issued at the time shows he held the rank of chief
warrant officer three (CW3), and that he had completed a total of 23 years,
5 months, and 5 days of active military service.

4.  The applicant's Military Personnel Records Jacket (MPRJ) contains a
separation document (WD AGO Form 53-55) that was issued to the applicant on
22 June 1945, upon his separation from active duty after his World War II
service.  This document confirms he arrived in the European Theater of
Operations (ETO) on 11 June 1942 and that he arrived back in the United
States on 17 November 1944.

5.  Item 33 (Decorations and Citations) of the applicant's WD AGO Form 53-
55 shows he earned the European-African-Middle Eastern Campaign Medal with
3 bronze service stars and the American Defense Service Medal during this
period of active duty service (23 September 1940-22 June 1945).  The Purple
Heart (PH) is not included in the list of authorized awards contained in
Item 33.  Item 34 contains the entry "None", and the applicant
authenticated this document with his signature in Item 56 (Signature of
Person Being Separated) on the date of his separation, which was 22 June
1945.

6.  The applicant's Military Personnel Records Jacket (MPRJ) contains a
medical treatment record (Form 52b), dated 24 March 1943, which shows he
was treated for a gunshot wound near his right wrist.  It also indicates
this wound was incurred accidentally while he was unloading captured
rifles.

7.  The applicant's last Officer Qualification Record (DA Form 66) does not
include the PH in the list of awards contained in Item 21 (Awards and
Decorations), and there is no record entry indicating that he was ever
wounded as a result of enemy action.  The applicant last audited this
record on 25 May 1970.

8.  War Department Technical Manual 12-235 prescribed the policy for
preparation of the WD AGO Form 53-55.  The guidance provided for entering
only wounds that were received as a result of enemy action in Item 34 of
the WD AGO Form 53-55.

9.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards
policy.  Paragraph 2-8 contains the regulatory guidance pertaining to
awarding the PH.  It states, in pertinent part, that the PH is awarded to
any member who has been wounded or killed in action.  A wound as an injury
to any part of the body from an outside force or agent sustained under
conditions defined by this regulation.  In order to support awarding a
member the PH, it is necessary to establish that the wound for which the
award is being made was received as a direct result of or was caused by
enemy action, the wound required treatment by a medical officer, and a
record of this treatment must have been made a matter of official record.
Paragraph 2-8h provides examples of injuries or wounds that clearly do not
justify award of the PH.  Included in this list is accidental wounding.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that an entry should be added to Item 34 of
his
22 June 1946 that shows he was wounded in action on 23 March 1943 was
carefully considered.  However, there is insufficient evidence to support
this claim.
2.  By regulation, only wounds received as a result of enemy action will be
entered in Item 34 of the WD AGO Form 53-55, and the PH is not authorized
for accidental wounding that was not a result of enemy action.  The medical
treatment record on file in the applicant's MPRJ clearly indicates his
wounding was accidental.  Further, there is no indication that he was ever
recommended for, or awarded the PH for this accidental wounding.  In view
of this information, it is logical to presume that had the wound been the
result of enemy action, it would have been properly documented in his
record and on his separation document at the time of his separation from
active duty.

3.  The applicant's 22 June 1946 WD AGO Form 53-55 does not include the PH
in the list of awards contained in Item 33, and Item 34 contains the entry
"None", which indicates he was not wounded as a result of enemy action.
The applicant authenticated this WD AGO Form 53-55 with his signature on
the date of his separation.  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 separation
document was prepared and issued.

4.  The applicant's last DA Form 66 does not include the PH in Item 21 and
there is no indication that he was ever wounded as a result of enemy action
contained on the record.  He last audited this record on 25 May 1970, which
was his verification the information on the record was correct at that
time.  There is no indication that the applicant attempted to correct his
record or resolve this issue in the more than 25 years he served on active
duty subsequent to his 22 June 1945 separation and in the more than 30
years that have passed since his last release from active duty in 1971.
Therefore, it is reasonable to presume that he considered the WD AGO Form
53-55 entry in Item 34 correct throughout the entire period he served on
active duty.

5.  The veracity of the applicant's claim that he received a gunshot wound
to the wrist while clearing captured weapons is not in question.  However,
absent any evidence confirming the weapon in question was booby trapped,
and given the medical treatment record on file confirms an accidental
wounding, the regulatory burden of proof necessary to support a wounded in
action entry on his separation document or award of the PH has not been
satisfied in this case.

6.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 February 1971, the date he was last
released from active duty.  Therefore, the time for him to file a request
for correction of any error or injustice expired on 27 February 1974.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__MDM__  __JTM __  __QAS__  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.




                                  ____Mark D. Manning________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060009836                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/02/22                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1971/02/28                              |
|DISCHARGE AUTHORITY     |AR 635-100                              |
|DISCHARGE REASON        |Revert to Retirement                    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  1021 |100.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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