RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 April 2008
	DOCKET NUMBER:  AR20070013941 


	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.









      The following members, a quorum, were present:













	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) 2nd Oak Leaf Cluster (3rd Award). 

2.  The applicant states, in effect, that he was wounded in action three times during WWII.  He claims that while serving with the 76th Infantry Division in the European Theater of Operations (ETO), he received a gunshot wound to his left upper arm in 1943, a gunshot wound to his right ankle in 1944, and a shrapnel wound to his lower back in 1944.  He also states that since he was injured during combat action while serving on active duty in the Army, he should have been awarded the PH 2nd Oak Leaf Cluster (3rd Award) based on his injuries.  He further indicates that at the time, he was more interested in surviving through the War and was not concerned with medals or ribbons; however, he would now like some recognition for his efforts during WWII.  

3.  The applicant provides his Discharge Certificate and a Department of Veterans Affairs (VA) Medical Progress Report extract 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 that primarily consist of a Certification of Military Service (NA Form 13038), the applicant’s Discharge Certificate, and an Office of the Surgeon General (OTSG) Hospital Admission Record for 1945.
3.  The applicant's NA Form 13038 shows he was inducted into the Army of the United States (AUS) and entered active duty on 6 April 1944.  It further shows he served until 28 April 1946, at which time he was honorably separated, in the rank of private first class (PFC).  

4.  An OTSG Hospital Admission Record pertaining to the applicant contained in the NPRC file confirms he was admitted to a medical treatment facility in the ETO in June 1945, and that he was diagnosed and treated for a non-combat related disease.  There are no available hospital records on file that indicate he was ever treated for a combat related wound or injury.  

5.  The applicant provides a copy of one page of a VA Medical Progress Report, dated 9 March 2007.  This document contains entries indicating he received a gunshot wound to his left upper arm in 1943, a shrapnel wound to his center low back in 1944, and a gunshot wound to his right ankle in 1944.  The document provides no circumstances surrounding how these wounds were incurred and no confirmation that military medical records were available or used by the VA to support these entries.  

6.  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.  The wound or injury for which the PH is being awarded must have required treatment by a medical officer; this treatment must be supported by medical treatment records that were made a matter of official record. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH and the supporting evidence he provided were carefully considered.  However, by regulation, in order to support award of the PH, there must be evidence a member was wounded/injured in action, was treated for the wound/injury by military medical personnel, and a record of this medical treatment must have been made a matter of official record. 

2.  There are no documents remaining on file that indicate the applicant was ever wounded in action, or treated for a combat related wound while serving on active duty, or that show he was ever awarded the PH by proper authority during his active duty tenure.  The OTSG Hospital Admission Record on file confirms he was treated for a non-battle related disease in the ETO in 1945; however, there are no military hospital records indicating he was ever treated for a combat related wound or injury during his tenure on active duty.  
3.  The VA medical progress note extract provided by the applicant fails to show the entries related to his wounds were supported by military medical or service records.  It is more likely that these entries were added based on information provided by the applicant and were not taken from military records.  As a result, absent any evidence (military medical treatment records, eye-witness statements, or record entries) corroborating the applicant's claim that he was wounded in action during World War II, or that verifies he was treated for combat related wounds or injuries by military medical personnel while he was serving on active duty, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Therefore, it would not be appropriate or serve the interest of all those who served during World War II and who faced similar circumstances to support granting the requested relief. 

4.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__PHM __  __JGH__  __KSJ___  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.




      _____PHM                  __
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070013941


4


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508