RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 July 2007
	DOCKET NUMBER:  AR20070000620 


	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. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. John Infante

Chairperson

Ms. Rose M. Lys

Member

Mr. James R. Hastie

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, award of the Purple Heart. 

2.  The applicant states, in effect, that he was assigned to the 145th Infantry Regiment, 37th Division, and injured in combat while serving on Luzon Island.  He also states, in effect, that the night he believes he could have gotten wounded was when he was guarding a Japanese officer in July 1945 and a group of Japanese soldiers with sabers came marching down the middle of the road.  The applicant further states, in effect, fighting broke out with everybody shooting and he helped a few of his comrades get to the medics, which is when he thinks he was wounded in his right side.  The applicant states that about 1 week later he went to one of the unit’s tent hospitals for a bad case of a skin infection, or what they called “jungle rot”, and dysentery.  At that time, he states the medics noticed what they believed to be a rupture on the applicant’s right side and he adds, “I think they put a bandage over it.”  The applicant further states, in effect, that his skin infection and dysentery got worse and he was put on board a ship and medically evacuated back to the United States.  The applicant also offers that, more than 16 years after his discharge, on 20 June 1962, he was admitted to St. Mary’s Hospital for an operation for the repair of a hernia.  At that time, he states they also sewed up what they thought to be a rupture on his right front side.  Later, on 30 October 2006, during a Computed Tomography (CT) scan, he states that a bullet and shrapnel were found in his front right side.  He also states, in effect, that he was unaware that he had been shot until the recent CT scan revealed that a bullet and two small fragments were lodged in his pelvis. The applicant adds that the VA gave him a 10 percent disability rating based on malaria for about 4 or 5 years, but then the Veterans Administration (VA) took it away.  He adds that award of the Purple Heart would move him up to a VA medical priority of 1.  The applicant concludes by stating, in effect, that he believes he is entitled to the Purple Heart.

3.  The applicant provides two self-authored statements, dated 19 February 2007 and one that is undated; WD AGO 53-55 (Enlisted Record and Report of Separation - Honorable Discharge), with an effective date of 20 February 1946;
St. Mary’s Hospital, Pierre, South Dakota, Medical History and Operation Report, dated 20 and 21 June 1962; Winner Regional HealthCare Center, Winner, South Dakota, X-Ray Report, dated 30 October 2006; Todd County Sheriff’s Office, letter, dated 20 February 2007; Department of Military and Veterans Affairs, Division of Veterans Affairs, Sioux Falls, South Dakota, letter, dated 26 February 2007; VCAA Notice Response (Page 7), dated 20 February 2007; and VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs (VA)), dated 20 February 2007.
CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 20 February 1946, the date of his discharge from the Army.  The application submitted in this case is dated 4 January 2007.

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 service records show that he was inducted and entered into active service in the U.S. Army on 27 October 1944.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 256 (Welder, Combination).

4.  The applicant’s military service records contain a copy of a Health Center (HC) Form 66 (Affidavit), dated 1 December 1945.  This document shows, in pertinent part, that the applicant duly swore that he had been awarded the Philippine Liberation Ribbon (with 1 bronze service star for the Luzon campaign), Asiatic-Pacific Campaign Medal, Good Conduct Medal, and World War II Victory Medal.  This document also shows that the first lieutenant serving as Acting Chief, Service Records Section, Personnel Division, placed her signature on the document affirming that the applicant’s affidavit was subscribed and sworn to before her on 1 December 1945.

5.  The applicant’s military service records contain a copy of a HC Form 72, subject: Award of Combat Infantryman Badge, dated 1 December 1945.  This document shows, in pertinent part, that the applicant requested award of the Combat Infantryman Badge based on assignment to Headquarters, 1st Battalion, 145th Infantry Regiment, 37th Division, while serving as a rifleman, machine gunner, and flame thrower operator during ground combat against the enemy at Luzon from 25 May 1945 to 14 August 1945.  This document also shows that the first lieutenant serving as Chief, Military Personnel Branch, Detachment of Patients, Hospital Center, Camp Carson, Colorado, verified that the applicant 
was entitled to the Philippine Liberation Ribbon with 1 bronze service star for the Luzon campaign, Asiatic-Pacific Campaign Medal, Good Conduct Medal, and World War II Victory Medal.

6.  There are no orders in the applicant’s military service records which show that he was awarded the Purple Heart.  There also is no evidence in his records that shows he was wounded or treated for wounds as a result of hostile action.

7.  The applicant’s military service records contain a copy of WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty or Retirement), dated 19 February 1946.   Item 11 (List all significant diseases, wounds, and injuries.  State circumstances under which wounds or injuries were incurred and date of onset.  Answer yes or no in Columns 1 to 4) of this document shows the following entries, “a. Malaria 3 times last time Jan ’46 Camp Carson; b. Amebic dysentery Nov. 1945 Cp Carson S. Hosp.; c. Dermatitis Oct. ’45 49th Gen. Hospital.”  Item 23 (Abdominal Wall and Viscera) contains the entry “Normal.”

8.  The applicant's WD AGO Form 53-55, issued at the time of his discharge from the Army on 20 February 1946, shows in Item 31 (Military Qualification and Date) that he earned the Combat Infantryman Badge and Marksman Marksmanship Qualification Badge with (M-1) Rifle Bar.  Item 33 (Decorations and Citations) of this document shows that he was awarded the Philippine Liberation Ribbon with 1 bronze service star, Asiatic-Pacific Campaign Medal, Good Conduct Medal, and World War II Victory Medal.  Item 34 (Wounds Received In Action) of this document  contains the entry "None."

9.  In support of his application, the applicant provides a copy of St. Mary’s Hospital, Pierre, South Dakota, Medical History and Operation Report, dated
20 and 21 June 1962, that shows, in pertinent part, the applicant’s chief complaint was a lump on his right abdominal area.  The Winner Regional HealthCare Center, Winner, South Dakota, X-Ray Report, dated 30 October 2006, shows, in pertinent part, in the Findings section the entry, “Just below the level of the iliac crest in the right lower quadrant superficial soft tissues there is a metallic fragment that appears to be a bullet.  This only appears as one solid fragment and then slightly lower in the right lower pelvic region there was two additional fragments.”  This document also shows, in pertinent part, in the Impression section, the entry, “3.  Metallic fragments right lower subcutaneous abdominal tissues, ______ uncertain.”  The Todd County Sheriff’s Office, letter, dated 20 February 2007, offers evidence that there is no record on file in the county pertaining to the applicant that shows his involvement in any criminal activities where shooting was involved.  The Department of Military and Veterans Affairs, Division of Veterans Affairs, Sioux Falls, South Dakota, letter, dated
26 February 2007; VCAA Notice Response (Page 7), dated 20 February 2007; and VA Form 21-4142, dated 20 February 2007, offer no pertinent information.

10.  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 Purple Heart.  It states, in pertinent part, that the Purple Heart is awarded to any member who has been wounded or killed in action.  A wound is 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 Purple Heart, it is necessary to establish that the wound, for which the award is being made, required treatment by a medical officer.  This treatment must be supported by records of medical treatment for the wound or injury received in action, and must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that he is entitled to award of the Purple Heart because he was wounded in action in July 1945 while serving with the 145th Infantry Regiment, 37th Division, on Luzon Island during World War II.

2.  The evidence of record shows that, on 1 December 1945, the applicant certified his awards and decorations included the Philippine Liberation Ribbon with 1 bronze service star for the Luzon campaign, Asiatic-Pacific Campaign Medal, Good Conduct Medal, and World War II Victory Medal.  The evidence of record also shows that, at that time, the applicant submitted a request for the Combat Infantryman Badge and provided information to substantiate his claim.  However, there is no indication that the applicant submitted a request for award of the Purple Heart or provided information to substantiate such a claim.

3.  The evidence of record shows that approximately 1 week after the incident in which the applicant believes he was wounded, the applicant states he reported to one of the unit’s tent hospitals for medical treatment.  The applicant also states that, at that time, the medics noticed what they believed to be a rupture on his right side and [the applicant] “thinks they put a bandage over it.”  However, the applicant’s military service records are absent any indication that he received medical treatment for this injury.  Additionally, in the Statement and Medical History of Examinee on the Report of Physical Examination that was conducted 

at the time of the applicant’s separation processing, the applicant fails to make any mention of this rupture to his right side.  Moreover, the medical doctor’s assessment of the applicant’s abdominal wall and viscera shows them to be normal, at that time.

4.  The Army regulatory guidance governing the criteria for award of the Purple Heart is clear in that the wound for which the award is made must have required treatment by a medical officer and record of the medical treatment for the wound or injury received in action must have been made a matter of official record.

5.  There is no evidence the applicant was awarded the Purple Heart.  There is no official documentary evidence in the applicant's military service records that supports his contention that he sustained a wound as a result of hostile action or was treated for a wound by a medical officer.  The applicant provides no timely official documentary evidence that supports his contention that he was wounded as a result of hostile action.  Therefore, there is insufficient evidence upon which to base award of the Purple Heart 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.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 20 February 1946, the date of his discharge.  Therefore, based on the date the Board was established, 2 January 1947, the time for the applicant to file a request for correction of any error or injustice expired on 1 January 1950.  The applicant did not 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

___JI  ___  ___RML_  ___JRH__  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.




        ___John Infante____
          CHAIRPERSON




INDEX

CASE ID
AR20070000620
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/07/24
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19460220
DISCHARGE AUTHORITY
AR 615-365 & WD Cir 391 (1945) 
DISCHARGE REASON
Convenience of the Government
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
107.0015.0000
2.

3.

4.

5.

6.