RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 August 2007
      DOCKET NUMBER:  AR20070004403


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. William Blakely               |     |Member               |
|     |Mr. Donald L. Lewy                |     |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 (PH).

2.  The applicant states, in effect, he would like the PH added to the list
of awards contained on his separation document (WD AGO Form 53-55).

3.  The applicant provides his WD AGO Form 53-55 and a Department of
Veterans Affairs (VA) Rating Decision, dated 16 June 2006, in support of
his application.

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 for
review.  A fire destroyed approximately 18 million service members’ records
at the National Personnel Records Center (NPRC) 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, which primarily consist of
the applicant's WD AGO Form 53-55 and Officer of The Surgeon General (OTSG)
Hospital Admission Records contained in his NPRC file.

3.  The applicant's WD AGO Form 53-55 shows that he was inducted into the
Army and entered active duty on 14 July 1943.  It also shows that he served
in the European Theater of Operations (ETO) from 1 February 1945 through
29 December 1945, and that he participated in the Rhineland and Central
Europe campaigns of World War II.

4.  Item 33 (Decorations and Citations) and Item 55 (Remarks) of the
applicant's separation document shows he earned the European-African-Middle
Eastern Campaign Medal with 2 bronze service stars, American Theater
Ribbon, Army Good Conduct Medal, World War II Victory Medal, and 1 Overseas
Service Bar.  Item 34 (Wounds Received In Action) contains the entry "None"
and the applicant authenticated the separation document with his signature,
in
Item 56 (Signature of Person Being Separated), on the date of his
separation.

5.  There are no orders or other documents in the applicant's reconstructed
NPRC file that show he was ever recommended for or awarded the PH by proper
authority, or that he was ever treated for a combat related wound by
military medical personnel while he was serving on active duty.

6.  On 18 January 1946, the applicant was honorably separated, in the rank
of private first class, after completing a total of 2 years, 6 months, and
13 days of creditable active military service.

7.  The applicant's NPRC file contains an OTSG Hospital Admission Record
pertaining to the applicant that shows he was admitted to a medical
treatment facility in the ETO on 7 May 1945, and treated for a shell
fragment wound to his shoulder.  The report outlines the circumstances
under which the applicant received the wound, which were that he injured
himself while marching or drilling, or while engaged in military activities
of purely military nature (Guard duty, Calisthenics, Bivouac, Judo, etc).
The report also confirms the wound was
non-battle related.

8.  The applicant provides a VA Rating Decision, dated 16 June 2006, in
which he was granted service connection and a 20% disability rating for
shell fragment wound, right shoulder muscle group III with retained foreign
body.  This document does not indicate the applicant's service medical
records were used in arriving at this decision.

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, that the wound required
treatment by military medical personnel, and a record of this treatment
must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH was fully considered.
However, by regulation, in order to support award of the PH, there must be
evidence that the wound for which the award is being made was received as a
result of enemy action.

2.  The VA Rating Decision provided by the applicant while indicating the
applicant has a service connected shell fragment wound to the right
shoulder, does not provide the circumstances under which the wound was
received, or any military medical record verification that the wound was
received as a result of enemy action.  An OTSG Hospital Admission Record on
file in the applicant's NPRC file confirms he was treated for a shell
fragment wound to the shoulder at a military medical treatment facility in
the ETO in May 1945; however, the hospital report confirms the wound was
non-battle related and was received during the applicant's performance of
normal military duties.  As a result, it appears the applicant's shoulder
wound was not received as a result of enemy action.

3.  The sincerity of the applicant’s claim of entitlement to the PH is not
in question.  However, his separation document does not include the PH in
the list of awards contained in Item 33.  Item 34 contains the entry
“None”, which indicates he was never wounded as a result enemy action, and
the applicant authenticated the separation document with his signature in
Item 56 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 WD AGO
Form 53-55 was prepared and issued.

4.  Absent any evidence confirming that the applicant was wounded as a
result of enemy action, or that he was ever recommended for or awarded the
PH by proper authority 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, in the interest of all those who served during
World War II and who faced similar circumstances, it would not be
appropriate to grant the requested relief in this case.  This decision in
no way diminishes the quality of the applicant's World War II service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___WB   _  __WDP__  __DLL __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  _____William D. Powers___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070004403                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/08/16                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1946/01/18                              |
|DISCHARGE AUTHORITY     |AR 615-365                              |
|DISCHARGE REASON        |Demobilization                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Mitrano                             |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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