RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 April 2008
	DOCKET NUMBER:  AR20080001195 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 award of the Purple Heart.

2.  The applicant states that he was wounded in Cologne, Germany, while he was driving a military truck and pulling an M-51 Turret Gun when the truck drove over a mine.  The explosion left him completely deaf in his left ear and partially deaf in his right ear.  He was treated by medics and sent back with his group to the front line and he continued serving without good hearing until his discharge.   

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  AGO Form 01254 (Transcripts of Military Record), dated 9 December 1945. 

	b.  Extract from a book titled “Gun 90mm, M-IA-I” [sic].  

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 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.



3.  The applicant's WD AGO Form 55-53 (Enlisted Record and Report of Separation Honorable Discharge) is not available for review with this case.  The applicant's available records show he was issued an AGO Form 01254 on 17 May 1949 to establish and document his honorable active military service.

4.  The applicant's AGO Form 01254 shows he was inducted in the Army of the United States on 24 March 1943 and entered active service on 31 March 1943 in military occupational specialty (MOS) 2601 (Machine Gunner).   This form also shows that he was assigned to Headquarters Battery, 67th Antiaircraft Artillery (AAA) Gun Battalion.

5.  The applicant's AGO Form 01254 further shows he served in the European-African-Middle Eastern (EAME) Theater during the period 21 October 1943 through 22 November 1945.

6.  The applicant's AGO Form 01254 shows he completed 2 years, 1 month, and 22 days of continental service and 6 months and 17 days of foreign service.  He was honorably separated on 9 December 1945.

7.  Item 25 (Military Qualifications and Date) of the applicant's AGO Form 01254 shows and entry of "None."

8.  Item 26 (Battles and Campaigns) of the applicant’s AGO Form 01254 shows he participated in the Normandy, Northern France, Ardennes, Rhineland, and Central Europe campaigns during WWII.  

9.  Item 27 (Decorations and Citations) of the applicant's AGO Form 01254 shows the applicant was awarded the Good Conduct Medal, the World War II Victory Medal, and the European-African-Middle Eastern Campaign Medal with one silver service star and 1 bronze arrowhead.  Item 27 does not show award of the Purple Heart.

10.  Item 29 (Wounds Received in Action) of the applicant's AGO Form 01254 contains the entry "None."

11.  The applicant's record does not contain General Orders awarding him the Purple Heart.




12.  The applicant provided an extract from what he describes as a book called "Gun 90mm, MIAI", from an unknown source that the applicant states was given to his battalion about the unit’s fight in Cologne, Germany.  The book describes the applicant’s injury as follows: 

The city fell on the 7th and Able moved into Pulheim and Dog up to Lovenich.  Once more you used a world-famed landmark on which to orient the guns---the spires of the Dom Cathedral of Cologne. 
G------ (the applicant) of Dog saw Cologne from a different angle---as your 2 1/2 went over a land-mine, you gave a perfect version of the man on the flying trapeze.  The truck was replaced by ordnance---your bruises received the prompt attention of the medics.

13.  The Purple Heart was established by General George Washington at Newburgh, New York on 7 August 1782 during the Revolutionary War.  It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action.

14.  Army Regulation 672-5-1 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained 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 been treated by military medical personnel, and the medical treatment must have been made a matter of official records.  This regulation also provides that there is no time limitation on requests for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to award of the Purple Heart.

2.  There are no General Orders that show the applicant was awarded the Purple Heart.  There is no evidence in his service personnel records which shows that he was wounded or injured as a result of hostile action or treated for such wounds.  Regrettably, absent evidence which conclusively shows that the applicant sustained wounds or injuries as a result of hostile action, and that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is insufficient basis for awarding the Purple Heart to the applicant in this case.

3.  The Board wants the applicant and all others concerned to 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)                                         AR20080001195



2


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