RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  03 April 2008
	DOCKET NUMBER:  AR20070017302 


	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

Ms. Judy Blanchard

Analyst

The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Jeffrey C. Redmann

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).   He was wounded in combat in Italy and was never awarded the Purple Heart.  He was given the Purple Heart while he was in the hospital, but it was never put in his record. 

3.  The applicant provides his WD AGO Form 53-55, a copy of a Western Union Telegram and a copy of a letter from the War Department dated 19 October 1944, 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.  

3.  The applicant's WD AGO Form 53-55 shows that he was inducted into the Army and entered active duty on 28 October 1942.  It also shows that he served in the European Theater of Operations (ETO) from 12 April 1943 through 22 May 1945.

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 and the Army Good Conduct Medal. 

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 21 October 1945, the applicant was honorably separated, in the rank of private first class, after completing a total of 2 years, 11 months, and 24 days of creditable active military service. 

7.  The applicant submitted with his application a Western Union Telegram, (year unknown), which stated in effect, that the applicant was slightly injured in action on 19 September in Italy.  The applicant also submitted a letter from the War Department, The Adjutant General’s Office, Washington D.C dated 19 October 1944, which in effect, informed the applicant’s family that he was making normal improvements and that when additional information is received concerning the applicant’s conditions they would be notified.  

8.  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.  The applicant submitted a copy of a Western Union Telegram which indicated that he was slightly injured in action on 19 September in Italy; however, the telegram is missing the year in which the injury occurred.  The applicant also submitted a letter from the War Department, dated 19 October 1944, which indicated that he was making normal improvements.  However, the letter does not verify the applicant’s claim that his injury was the result of enemy action.  

2.  The applicant’s claim of entitlement to the PH was carefully considered and found to be insufficient in merit.  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.  

3.  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

__CD __  __LMD__  __JCR___   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.





___Carmen Duncan  ___
      CHAIRPERSON