RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 January 2008
	DOCKET NUMBER:  AR20070003663 


	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. Paul Wright

Analyst

The following members, a quorum, were present:


Mr. Gerald J. Purcell

Chairperson

Mr. Donald L. Lewy

Member

Mr. David W. Tucker

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 great-great-grandfather, hereafter referred to as the former service member (FSM), be awarded the Purple Heart and the Civil War Medal (sic).

2.  The applicant states the FSM is entitled to the Purple Heart because he was wounded in the head on 17 September 1862 during the Battle of Antietam when struck by a piece of wood that had been "hit by a solid shot."  He states while the Purple Heart was instituted in 1932 and made retroactive to 5 April 1917, awards for qualifying events prior to that date have been made.  He adds the Civil War Medal was established in January 1907 and was awarded for service between 15 April 1861 and 9 April 1865.  The FSM served from 19 July 1862 to 1 March 1864.

3.  The applicant provides:

	a.  An addendum stating correction desired and application evidence.

	b.  An affidavit pertaining to Pension Claim Number 290148.

	c.  A statement dated 17 May 1880 from the War Department Surgeon General's Office.

	d.  A statement signed by the FSM dated 1 March 1879.

	e.  A copy of the FSM’s Certificate of Disability for Discharge dated 19 May 1864.

	f.  An undated letter from the applicant attaching evidence of his relationship to the FSM.

	g.  Three birth certificates.

	h.  Four copies of additional affidavits describing the FSM's injury.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s military records are not available to the Board.  This case is being considered using reconstructed records, which primarily consists of documents supplied by the applicant and which appear to have been obtained from the National Archives or other Civil War-era archival centers.

3.  On 19 July 1862, the FSM enlisted in the Detachment of Unassigned Men, United States Veterans Reserve Corps for a period of 3 years at Chelsea, Massachusetts.  He was then assigned to, and served with, Company C, 35th Regiment, Massachusetts Volunteers.  The Regiment was formed in Boston and Chelsea on 1 August 1862.  On 22 August 1862, it departed Boston en route to Washington, DC and assignment to the Army of The Potomac.

4.  The available records indicate the FSM participated with his unit in the Battle of Antietam near Sharpsburg, Maryland and Antietam Creek on 17 September 1862.  Thereafter, it appears he continued with his unit at encampments in Pleasant Valley, Maryland, near Hagerstown; and Falmouth, Warrenton, Sulphur Springs, and Fredericksburg, Virginia.  The Regiment participated in the ill-fated Battle of Fredericksburg, 12-15 December 1862, then withdrew north towards Aquia, Virginia in January 1863.

5.  From service records, little more is known of the FSM's Civil War records.  On 19 May 1864, he was discharged at Boston, Massachusetts with a Certificate of Disability which stated that he was "...incapable of performing the duties of a Soldier because of inability to stand or march in consequence of sunstroke received Sept 1862 near Antietam.  Since then injured in Brigade Hospital accidentally in head.  Not fit for Enlisted Corps.  Totally disabled."

6.  Sometime after the end of the Civil War, the FSM apparently applied to the War Department Pension Office for a Civil War pension.  A document prepared by the War Department Surgeon General's Office on 17 May 1880 and submitted to the Commissioner of Pensions states the following concerning the FSM's history of medical care and hospitalizations during the Civil War:

	a.  He was hospitalized near Wind Mill Point, Aquia Creek, Virginia in January 1863 for rheumatism.

	b.  He was admitted to Lincoln General Hospital, Washington, DC on 8 February 1863 for epilepsy.

	c.  He was transferred to a General Hospital in Portsmouth, Rhode Island on 27 March 1863 for epilepsy.

	d.  He was admitted to MacDougall General Hospital, Fort Schuyler, New York Harbor, New York on 22 December 1863 for epilepsy.

	e.  He was returned to duty on 28 December 1863 and transferred to Ohio.

	f.  He was admitted to Dennison General Hospital, Camp Dennison, Cincinnati, Ohio on 30 December 1863 for rheumatism.  From the hospital, he was given a furlough to his home of record and ordered to report to the Medical Director, Boston, Massachusetts upon return to duty.

	g.  He was admitted to Mason General Hospital, Pemberton Square, Boston, Massachusetts on 17 February 1864; for epilepsy.

7.  The Surgeon General's Office concluded by stating there was no record of the FSM having been wounded at Antietam, Maryland on 17 September 1862.

8.  Affidavits, dated 9 November 1883 and 31 January 1885 that were submitted to the War Department Pension Office by former comrades-in-arms in behalf of the FSM essentially stated that the FSM was injured on 17 September 1862 at the Battle of Antietam.  A Confederate shell "threw a fence rail with great force against [the FSM's head] knocking him senseless."  This injury caused the FSM to suffer "epileptic fits."  The FSM was then treated at Lincoln General Hospital, Washington, DC for "epilepsy of the brain."

9.  It is not known whether the FSM ever received a Civil War pension.

10.  Army Regulation (AR) 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded in the name of the President of the United States to any member of an Armed Force of the United States who, while serving under competent authority in any capacity with one of the US Armed Services after 5 April 1917, has been wounded or killed while in action against an enemy or 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.  This regulation further states that there is no time limit on submission of requests for award of the Purple Heart.

11.  AR 600-8-22 provides that the Civil War Campaign Medal was established by War Department General Order 12, 1907.  It is awarded for service between 15 April 1861 and 9 April 1865, or in Texas between 15 April 1861 and 20 August 1866.  As an added note, historical records indicate the first 554 medals were inscribed with a number and issued to a select few individuals.  Individuals receiving the medal after the first 554 did not receive numbered medals and no records were kept pertaining to the issuance of these medals.  This medal is no longer produced and is not available for issue.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his great-great-grandfather, the FSM and a Civil War veteran, be awarded the Purple Heart and the Civil War medal [sic].

2.  The Civil War Campaign Medal was awarded for service between 15 April 1861 and 9 April 1865, or in Texas between 15 April 1861 and 20 August 1866.  The FSM served in the US Army during the qualifying period and is entitled to this award.  This award is no longer produced and supplies have been exhausted.

3.  The Purple Heart is awarded for a wound sustained as a result of hostile action, which required medical treatment which was made a matter of official record.  In the FSM's case, the Surgeon signing his Certificate of Disability for Discharge officially stated the FSM suffered sunstroke while fighting at Antietam. He also states the FSM later accidentally [emphasis added] injured his head in the Brigade Hospital.  Sunstroke and an accidental head injury do not qualify for award of the Purple Heart.

4.  In 1880, the Surgeon General of The Army, in a report to the War Department Commissioner of Pensions, stated there was no military record of the FSM having been wounded at Antietam on 17 September 1862.  This constitutes additional evidence that the FSM is not entitled to award of the Purple Heart.

5.  The affidavits submitted by former comrades-in-arms were written some 20 years after the fact and after the release of the Army Surgeon General's report on the FSM's medical treatment while in the Army.  All of the affiants attempt to make a service connection for the FSM's epileptic seizures by linking them to being struck in the head by a fence rail.  Unfortunately, there is no record of the FSM having been treated for a bump on the head on or after 17 September 1862; records show he did not enter the hospital until January 1863, and then for rheumatism.  When he did enter the hospital for epilepsy, no record of etiology was assigned to the seizures.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__gjp___  __dll___  __dwt___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  publishing the appropriate authorization indicating the FSM was awarded the Civil War Campaign Medal; and

	b.  providing a copy of said authorization to the Archivist of the United States for the appropriate annotation of the records.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the Purple Heart.  



						Gerald J. Purcell
______________________
          CHAIRPERSON


INDEX

CASE ID
AR20070003663
SUFFIX

RECON

DATE BOARDED
20080124
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(GRANT)
REVIEW AUTHORITY

ISSUES         1.
107.0015
2.
107.0000
3.

4.

5.

6.