IN THE CASE OF:	  

	BOARD DATE:	  12 June 2008

	DOCKET NUMBER:  AR20080002351 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his great grandfather's, a deceased former service member (FSM), records to show that he was awarded the Purple Heart.

2.  The applicant states, in effect, that his great grandfather was wounded while serving during the Civil War.  The applicant desires to include award of the Purple Heart in his deceased great grandfather's service record and to have the medal as a memento of his service.

3.  The applicant provides copies of the FSM's declaration for pension paperwork, a letter from the National Personnel Records Center, a two-page extract from a book, and the FSM's Certificate of Death in support of this 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.  Records show the FSM was a member of Company G, 3rd Regiment of the New Mexico Volunteer Mounted Infantry during the period 11 September 1861 through 11 March 1862.  He held the rank of private at the time of his discharge.

3.  The applicant provides a copy of the FSM's Declaration for Invalid Pension, dated 12 December 1904, that was submitted in the Territory of New Mexico.  The form shows that the FSM stated, under oath, that he was a member of Company G, 3rd Regiment of the New Mexico Volunteer Mounted Infantry during the period 11 September 1861 through 11 March 1862.  The FSM further stated that he sustained a bullet wound behind his left ear which resulted in partial deafness.

4.  The FSM's Declaration for Invalid Pension packet contains a document that shows he underwent a medical examination on 19 April 1905 in compliance with the requirements of law because he stated that he was suffering from a bullet wound behind his left ear which resulted in partial deafness.  The examination revealed a scar measuring one half-inch by one inch with a depression in back of his left ear.  The medical authority opined that all structuring was normal, that no deafness could be determined, and rendered a rating of zero for the FSM's wound.

5.  The applicant provides a copy of the FSM's Declaration for Pension, dated 18 March 1907, that was submitted in the Territory of New Mexico.  The form shows that the FSM stated, under oath, that he was a member of Company G, 3rd Regiment of the New Mexico Volunteer Mounted Infantry during the period 11 September 1861 through 11 March 1862.

6.  The applicant provides a copy of a United States of America, Department of the Interior, Bureau of Pensions Certificate, dated 28 January 1908, showing the FSM was entitled to a pension for his service with Company G, 3rd Regiment of the New Mexico Volunteer Mounted Infantry commencing on 23 March 1907.

7.  The applicant provides a copy of a California State Board of Health Standard Certificate of Death, dated 28 July 1926, that shows the FSM died on 26 July 1926.

8.  The applicant provides a copy of a typewritten General Affidavit which is neither dated nor notarized.  The Affidavit shows, in pertinent part, that the FSM was a private in Company G, 3rd Regiment of the New Mexico Mounted 
Volunteers during the period 11 September 1861 through 11 March 1862.  A handwritten entry at the bottom of the page contains the entries "Battle of Valverde 21 February 1862 and Battle of Glorieta 27 and 28 March 1862."

9.  The applicant provides a copy of the cover of a book titled On the Bloody Trail of Geronimo (A Soldier's journal account of the Apache Campaign of 1886 as fought by the Negro Troopers of the famed 10th Cavalry), written by Lieutenant John Bigolow, Jr..  He also provides a one page extract from a book.  Neither document specifically mentions either the FSM or his unit.

10.  The applicant provides a letter addressed to the FSM from the National Personnel Records Center, Military Personnel Records, St. Louis, Missouri, dated 24 January 2008.  The letter was sent in response to a request for correction of the FSM's record.  The letter, in pertinent part, informs the recipient that the National Personnel Records Center has no authority to review and approve amendments or corrections to military records.  The letter further informs the recipient that they were forwarding the completed DD Form 149 (Application for Correction of Military Record) to the Army Review Boards Agency Support Division, St. Louis, MO [for further processing].

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart was established by General George Washington at Newburgh, New York, on 7 August 1782, during the Revolutionary War.  The award fell into disuse following the Revolutionary War and was not proposed again officially until after World War I.  It was reestablished by the President of the United States per War Department General Orders Number 3, dated 1932.  The Purple Heart is awarded in the name of the President of the United States and per Title 10 United States Code, Section.  Award of the Purple Heart is limited to members of the Armed Forces of the United States who, while serving under component authority in any capacity with one of the U.S. Armed Services after 5 April 1917, has been wounded or killed 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, and the medical treatment must have been made a matter of official record.  A physical lesion is not required; however, the wound for which the award is made must have required treatment by a medical officer and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.






DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his great grandfather was wounded while serving during the Civil War and should be awarded the Purple Heart was carefully considered.

2.  There are no general orders that show the FSM was awarded the Purple Heart.  

3.  Although the applicant contends that his great grandfather was wounded while serving during the Civil War, there is no corroborating evidence present in the available records which show that the applicant was wounded as the result of a hostile action.  In fact, the only reference to him being injured is in his self-dictated affidavit rendered for the purpose of seeking a pension.  Aside from this statement made by the FSM, evidence of record does not show the FSM was wounded as a result of hostile action or treated for such wounds.  Additionally, the Purple Heart fell into disuse following the Revolutionary War and was not proposed again officially until after World War I.

4.  In the absence of evidence that the FSM was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case.

5.  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.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X ___  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.



      ___________X____________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080002351



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ABCMR Record of Proceedings (cont)                                         AR20080002351



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