IN THE CASE OF:	  

		BOARD DATE:	  28 August 2008

		DOCKET NUMBER:  AR20080006122


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, award of the Purple Heart (PH).

2.  The applicant states, in effect, that he was injured by weapon recoil and was hospitalized for quite some time as a result.  He claims it is his belief that he deserves the PH as a result of this injury.  

3.  The applicant provides no additional documentary evidence in support of his 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. The applicant's complete 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.  The applicant’s records were lost and/or partially destroyed in that fire.  This case is being considered using a reconstructed file from NPRC.  

3.  A partially legible separation document (WD AGO Form 53-55) pertaining to the applicant that remains in the NPRC file shows he was inducted into the Army in September 1942 and entered active duty on 14 October 1942.  It also shows he held military occupational specialty (MOS) 844 (Light Artillery Crewman), and that he served in the European Theater of Operations (ETO) from 21 July 1944 through 13 May 1945.  It further indicates that he was credited with participating in the Rhineland, Southern France, and Central Europe campaigns of World War II.

4.  Item 31 (Military Qualification and Date) of the applicant’s WD AGO 
Form 53-55 shows he earned the Marksman Marksmanship Qualification Badge with Carbine Bar, and Item 33 (Decorations and Awards) shows that during his active duty tenure, he earned the World War II Victory Medal, Army Good Conduct Medal, American Service Medal, and the European-African-Middle Eastern (EAME) Campaign Medal with 3 bronze service stars.  

5.  Item 34 (Wounds Received in Action) of the applicant's WD AGO Form 53-55 is blank, and the applicant authenticated this separation document with his signature in Item 56 (Signature of Person Being Separated) on 4 November 1945, the date of his discharge.

6.  The applicant's reconstructed NPRC file also contains two WD AGO Forms 
8-24, dated 24 May and 5 June 1945.  These documents contain entries indicating the applicant was accidentally wounded and sustained a severe contused right hip injury when he was struck by the recoil of a .90 millimeter gun. 

7.  There are no documents in the reconstructed file that indicate the applicant was ever recommended for or awarded the PH by proper authority while serving on active duty.

8.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to award a PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that the wound was treated by military medical personnel, and a record of this medical treatment must have been made a matter of official record. 

9.  Paragraph 2-8h of the awards regulation provides examples of injuries or wounds which clearly do not justify award of the PH.  Included in these examples are accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the PH for being wounded by weapon recoil has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  By regulation, in order to support award of the PH, there must be evidence that the wound for which the award is being made was the result of enemy action.  The PH is not authorized for injuries incurred as a result of an accident not related to or caused by enemy action.  

3.  The evidence of record confirms that the applicant was accidentally wounded when he was struck by the recoil of a .90 millimeter gun, and the applicant admits his superiors never recommended him for or awarded him the PH based on this accidental wounding.  Further, his WD AGO Form 53-55 does not include the PH in the list of awards contained in Item 33, and Item 34 is blank, which indicates he was never wounded as a result of enemy action.  The applicant authenticated the WD AGO Form 53-55 with his signature on the date of his separation.  In effect, his signature was his verification that the information contained on the separation document, to include the Item 33 and Item 34 entries, was correct at the time the WD AGO Form 53-55 was prepared and issued.  Therefore, absent any evidence that the accidental wounding in question was received as a result of enemy action, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  

4.  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 related to award of the PH.  

5.  The applicant and all others concerned should know that the decision regarding award of the PH 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

____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)                                         AR20080010202



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR20080006122


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