RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20080001902 


	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, as the daughter of the deceased former service member (FSM), requests correction of her late father's records to show award of the Purple Heart. 

2.  The applicant states, in effect, that the FSM was wounded on 8 January 
1945 by enemy shell fire.  The applicant states the FSM told her he was wounded by the concussion of an enemy shell that exploded near him, ripping through his groin area.  He was in a great deal of pain and when the officer (medical) was getting the information about the injury, the FSM told him to get a needle and thread and sew him up.  This is the reason that the cause of his injury is not listed on the report.  Another reason the report is not clear is because the FSM received an appendectomy on 3 March 1944 and the explosion ripped through this area.

3.  The applicant provides a Medical Department (MD) Form 52, dated 7 March 1944; an MD Form 52D, dated 16 January 1944; a WD AGO Form 8-51 (Progress Notes), dated 7 January 1949; an MD Form 55 O-2 (Operation Report), dated 27 January 1945; a Morning Report from F Company, 398th Infantry Regiment, dated 16 January 1945; a memorandum from the Office of The Adjutant General, dated 21 September 1955; a citation for the Army Commendation Medal; a memorandum from the U.S. Army Human Resources Command, dated 5 December 2006; and a State of North Carolina Certification of Vital Record, dated 16 August 1995.  

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 FSM was inducted on 23 November 1942 and entered active duty on 
30 November 1942.   On 7 March 1944, he was hospitalized after receiving appendectomy surgery at Fort Bragg, North Carolina and later returned to duty.
3.  The FSM arrived in the European Theater of Operations on 20 October 1944 while assigned to F Company, 398th Infantry Regiment, 100th Infantry Division.  On 16 January 1945, the FSM was admitted at the 93rd Evacuation Hospital in France and was diagnosed with a hernia condition.  On 21 January 1945, the FSM was transferred to the 46 General Hospital where he was further diagnosed with hernia, inguinal, left, indirect, incomplete, cause undetermined and hernia, incisional, right rectus, complete, direct, non-reducible, cause undetermined.  On 27 January 1945, the FSM's hernia was repaired, and on 20 March 1945 he was returned to duty.

4.  On 18 November 1945, the FSM was reassigned to B Battery, 127th Anti-Aircraft Artillery Gun Battalion.  On 16 February 1946, he was reassigned to E Company, 3rd Infantry.  On 24 June 1946, the FSM was honorably discharged for the purpose of immediate reenlistment on 25 June 1946.  

5.  The applicant's WD AGO Form 53-55 with the period ending 24 June 1946 does not show award of the Purple Heart.  Item 34 (Wounds Received in Action) contains the entry "NONE."

6.  There are no General Orders in the FSM's records that show he was awarded the Purple Heart.

7.  The FSM's WD AGO Form 24 (Service Record) covering the period from 
23 November 1942 to 24 June 1946 does not show award of the Purple Heart.

8.  The FSM departed the European Theater of Operations on 27 October 1946.  On 4 January 1949, the FSM was admitted at Oliver General Hospital at Augusta, Georgia for observation of multiple sclerosis.

9.  A WD AGO Form 8-51 (Progress Notes), dated 7 January 1949, shows a military medical physician noted the FSM's medical history as given to him by the FSM.  The notes indicated "In March, 1944, he had an appendectomy at Fort Bragg, North Carolina.  While on active duty overseas, he was exposed to shelling at close range from enemy shells.  On 8 January 1945, after a shell exploded close behind, he felt as if the scar on his right side opened up.  Similar feeling occurred on the left.  He remained on the battle field until 10 January 1945 when another shell exploded close behind and he was unconscious from 2000 until 0600 of the following day.  He was finally evacuated on 12 January 1945 and had bilateral abdominal repair on 28 January 1945.  He was returned to duty on 19 March 1945."  



10.  On 30 November 1962, the FSM retired from active duty.  His DD Form 
214 (Armed Forces of the United States Report of Transfer or Discharge) with the period ending 30 November 1962 does not show award of the Purple Heart

11.  Army Regulation 600-8-22 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 required treatment by medical personnel, and the medical treatment must have been made a matter of official record.  When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the FSM had an appendectomy in March 1944 and hernia surgery in January 1945.  In 1949, the FSM indicated that he was exposed to several explosions on the battlefield that may have aggravated his appendectomy scar.  While his injury is unfortunate, there is no evidence in the available records and the applicant has not provided evidence that shows the FSM's injury was a result of hostile action. 

2.  The FSM's commander at the time of the incident must have been aware of the incident as well of the severity of the FSM's injury and medical treatment.  It appears the commander did not find it appropriate at that time to recommend the FSM for award of the Purple Heart.

3.  Regrettably, in view of the foregoing, there is insufficient evidence that would warrant granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX  __  __XXX __  ___XXX_  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of the FSM's service in arms.




      ____    XXX______
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20080001902


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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