IN THE CASE OF:	

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080005640 


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 an additional award of the Purple Heart.  In effect, the Purple Heart (PH) with 1st Oak Leaf Cluster for wounds received in combat during WWII.

2.  The applicant states, in effect, he would like the second PH added to the list of awards contained on his separation document (WD AGO Form 53-55).

3.  The applicant provides his WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge); copy of a memorandum from the Department of Veterans Affairs (VA) Rating Decision, dated 23 April 2004; a copy of a memorandum from the Disable American Veterans National Service Office; and a five page article with drawings about the applicant in support of his application.  The cover letter the applicant states that he has provided in support of his application is not available.  

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 enlisted into the Army and entered active duty on 16 June 1943.  It also shows that he served in the European Theater of Operations (ETO) from 12 May 1944 through May 1945, and that he participated in the Rhineland and Central Europe campaigns of World War II.  

4.  Item 33 (Decorations and Citations) of the applicant's separation document shows he earned the European-African-Middle Eastern Campaign Medal with 
3 bronze service stars, the Purple Heart, the Combat Infantry Badge and the Army Good Conduct Medal.  Item 34 (Wounds Received in Action) contains the entry "28 September 1944" and the applicant authenticated the separation document with his signature, in Item 56 (Signature of Person Being Separated), on the date of his separation.  

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 29 September 1945, the applicant was honorably separated by reason of disability under the provisions of Army Regulation 615-361, in the rank of private first class, after completing a total of 1 year, 9 months, and 20 days of creditable active military service.  

7.  The applicant provides a copy of a VA Rating Decision, dated 23 April 2004.  This document indicates that the applicant was granted service connection disability and a 100% disability rating for Thombo-Angitis Oblterans, left lower extremity, with frozen feet and arthritis shell fragment wound (30 %), Thombo-Angitis Oblterans, right lower extremity, with frozen feet and arthritis shell fragment wound (30 %); Post-Traumatic Stress Disorder (30%), residual, cold injury, left hand, with arthritis, peripheral neuropathy (20%) and residual, cold injury, right hand, with arthritis, peripheral neuropathy (20%).  Although the combine disability rating is about 200%, a combine rating of 100% covers the entire physical body.   

8.  On 3 March 2008, the applicant was informed by the National Personnel Records Center (NPRC) that he was authorized the following awards based on the evidence that was available.  The applicant was awarded the Bronze Star Medal, the Purple Heart, the Good Conduct Medal, the Presidential Unit Citation, the American Campaign Medal, the Combat Infantryman Badge 1st award, the Honorable Service Lapel button WWII and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

9.  Army Regulation 600-8-22 prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the Purple Heart.  It states, in pertinent part, that the Purple Heart is awarded to any member who has been wounded or killed in action.  A wound is an injury to any part of the body from an outside force or agent sustained under conditions defined by this regulation.  In order to support awarding a member the Purple Heart, it is necessary to establish that the wound for which the award is being made required treatment by a medical officer.  This treatment must be supported by records of medical treatment for the wound or injury received in action, and must have been made a matter of official record.
Not more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent. This Army regulation also provides that an Oak Leaf Cluster is awarded to denote the second and each succeeding award of certain decorations, among which is the Purple Heart.  There is no statute of limitations governing requests for award of the Purple Heart.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.







DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to award of the Purple Heart with 1st Oak Leaf Cluster for wounds received while he was in combat was carefully considered and the available evidence is insufficient to support his contention. 

2.  The evidence of record shows the applicant received a Purple Heart for wounds received in action on 28 September 1944 during his tour of duty in the ETO.  However, there is no evidence in his record nor has the applicant provided any evidence that shows that he was wounded a second time.  Therefore, in view of the foregoing, the applicant is not entitled award of the Purple Heart with 1st Oak Leaf Cluster.

3.  The applicant provides a copy of a VA Rating Decision, dated 23 April 2004. This document indicates the applicant was granted a service connected disability for shrapnel scar to the left leg; however, it does not provide the circumstances under which the wound was received, or any military medical record verification that the wound was received as a result of enemy action.  

4.  The sincerity of the applicant’s claim of entitlement to the Purple Heart with 1st Oak Leaf Cluster is not in question.  However, other than information related by him to VA officials, there is no evidence confirming he was wounded a second time while engaged in combat.  Therefore, in view of the available evidence, the applicant is not entitled to award of the Purple Heart with 1st Oak Leaf Cluster.  This decision in no way diminishes the quality of the applicant's World War II service.  

5.  In order to justify correction of a military record the applicant must show to 
the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement. 

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)                                         AR20080005640



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ABCMR Record of Proceedings (cont)                                         AR20080005640



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