IN THE CASE OF:
BOARD DATE: 30 September 2008
DOCKET NUMBER: AR20080005814
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, in effect, correction of his WD AGO Form 53-55 (Enlisted Record and Report of Separation) to show he sustained injuries from machine gun fire on his right shoulder and to show award of the Purple Heart.
2. The applicant states, in effect, that he was struck by machine gun fire on his right shoulder and the scar remains on his shoulder. He states that his field jacket was shredded by the machine gun fire. He does not believe that his wounds were entered in his records when he was transferred to the Army hospital in Luxemburg, Germany. He states that his shoulder was not examined and nothing was done about his stomach problems which he has experienced since that time. However, he was put on a liquid diet.
3. The applicant provides personal statements, a copy of his WD AGO Form
53-55, and his Honorable Discharge Certificate.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants 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 applicants 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 entered active service on 4 August 1944. His WD AGO Form 53-55 shows he was assigned to the European-African-Middle Eastern Theater of Operations on 27 January 1945.
4. The applicant departed the European-African-Middle Eastern Theater of Operations on 17 June 1946. He was honorably discharged on 7 July 1946. His WD AGO Form 53-55 shows he was awarded the World War II Victory Medal, the European-African-Middle Eastern Theater Campaign Medal with two bronze service stars, two Overseas Service Bars, the Army of Occupation Medal (Germany), the Army Good Conduct Medal, and the Combat Infantryman Badge.
5. Item 34 (Wounds Received in Action) on the applicants WD AGO Form 53-55 shows the entry NONE.
6. Army Regulation 600-8-22 (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 required treatment by medical personnel, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. There are no medical documents which indicate the applicant was wounded as a result of hostile action during World War II. In addition, his WD AGO Form 53-55 does not reflect he received any wounds in action. There is also no evidence that he experienced any stomach problems.
2. By regulation, in order to award the Purple Heart it is necessary to establish that a Soldier was wounded in action, that the wound required treatment by a medical officer, and the treatment record must have been made a matter of official record.
3. Although the applicant contends that he sustained injuries from machine gun fire on his right shoulder, there is insufficient evidence to verify he was wounded as a result of hostile action or to correct item 34 on his WD AGO Form 53-55.
4. Regrettably, there is insufficient evidence to support award of the Purple Heart in this case.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___xx___ __xx____ __xx____ 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.
_______ xxxx_______ ___
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) AR20080005814
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ABCMR Record of Proceedings (cont) AR20080005814
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