IN THE CASE OF:	  

		BOARD DATE:	  
		DOCKET NUMBER:  AR20080006151 


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 to the records of his deceased stepfather, a former service member (FSM), by award of the Purple Heart.

2.  The applicant states, in effect, that the documents he is submitting will verify the FSM was injured and should be awarded the Purple Heart. 

3.  In support of his application, the applicant provides copies of the FSM's WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge), two eyewitness statements, a General Durable Power of Attorney, and the FSM's Certificate of Death.

CONSIDERATION OF EVIDENCE:

1.  The FSM'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 in 1973.  It is believed that the FSM’s Army records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record and documentation submitted by the applicant for the Board to conduct a fair and impartial review of this case.  

2.  The FSM's available records show that he was inducted into the Army of the United States on 5 May 1943 and entered active duty on 12 May 1943.  He completed training and was awarded military occupational specialty 059, Assistant Unit Foreman.  He served in the European Theater from 6 January 1945 to 13 May 1945.
3.  The FSM's available records contain a Request for Decoration and/or Citation form, dated 3 October 1946, wherein the FSM requested award of the Purple Heart.  At that time the FSM was a patient at Fitzsimons General Hospital, Denver, Colorado.

4.  The FSM's available records also contain a memorandum to the Commander, Fitzsimons General Hospital, Denver, dated 25 November 1946, wherein it was stated that the unsupported evidence submitted in basic communication was considered insufficient upon which to base an award of the Purple Heart.  Unless the FMS could submit a statement from an eyewitness or individual having personal knowledge to confirm the fact that the wounds were received in action, favorable consideration could not be given to the case.

5.  The FSM's available records further contain an eyewitness statement, dated 5 April 1947, wherein the individual stated that on 17 March 1945, the FSM was seriously injured when he was shot by a 30 caliber machine gun.  The FSM was shot in the left leg near the knee and in his right thumb.  The individual also stated that the machine gun was being taken up from where it had been out on security, when it accidently discharged and hit the FSM.  The applicant also submitted a copy of this statement with his application.

6.  The FSM's available records also contain a second eyewitness statement, dated 5 April 1947, wherein the individual stated that the FSM was wounded in action by a 30 caliber heavy machine gun on 17 March 1945.  It was also stated that it happened in the outskirts of Dambauck, Germany, when Company A, 42nd Engineers, was security for the 1st platoon while removing a road block.  The job was completed and the weapons were being loaded on a truck when it happened.  The applicant also submitted a copy of this statement with his application.

7.  The FSM's available records further contain a memorandum to the Commander, Fitzsimons General Hospital, Denver, dated 25 April 1947, wherein it was stated that the application from the FSM for award of the Purple Heart for wounds received on 17 March 1945 was not favorably considered since the circumstances under which they were incurred did not meet the requirements of the regulations governing the award of that decoration.

8.  The FSM was honorably discharged from active duty on 21 June 1947, for Disability.  

9.  Entries on the FSM's WD AGO Form 53-55, Item 31 (Military Qualification and Date) lists the following award:  the Sharpshooter Marksmanship Qualification Badge, with Rifle Bar.  Item 33 (Decorations and Citations) lists the following awards:  the World War II Victory Medal, the European-African-Middle-Eastern (EAME) Theater Campaign Medal, and the Good Conduct Medal.  Item 55 (Remarks) lists the Honorable Service Lapel Button, World War II.  Entries on his WD AGO Form 53-55 do not show award of the Purple Heart.  

10.  Item 34 (Wounds Received in Action), of the WD AGO Form 53-55, shows the entry, "None" to indicate the FSM was not wounded while he served in the EAME Theater.  The FSM affixed his right thumb print to Item 54 (Right Thumb Print) and placed his signature in Item 56 (Signature of Person Being Separated) to indicate that the information recorded on the form was correct/complete to the best of his knowledge.

11.  There are no orders or evidence in the FSM’s available records that show he was awarded the Purple Heart.  There is also no evidence in his records that indicate he was wounded or treated for wounds as a result of hostile action.  

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against the enemy or 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.  This regulation also provides that there is no statute of limitations on requests for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  By regulation, to be awarded the Purple Heart, it is necessary to establish that a Soldier was wounded or injured in action.  There is no evidence of record, and the applicant has provided insufficient evidence, which shows that the FSM was 
awarded the Purple Heart or that he was wounded as a result of hostile action.  Based on the foregoing, the applicant does not meet the regulatory requirement for award of the Purple Heart; therefore, he is not entitled to this award.  

2.  The applicant's contention, in effect, that the documents he submitted verify the FSM's injury has been noted.  However, the evidence of record shows the FSM was advised on 25 April 1947 that the wounds he received on 17 March 1945 did not meet the requirements of the regulations governing the award of the Purple Heart due to the circumstances under which they were incurred.  The FSM was in a patient status at the time, most likely as a result of those wounds.  The evidence also shows the FSM submitted two eyewitness statements in 


support of his request.  These same two statements were considered in 1947 and provided no evidence that the FSM's wounds were received as a direct result of enemy action; thereby, resulting in denial of his request for award of the Purple Heart. 

3.  The evidence of record and the evidence submitted by the applicant failed to show that the FSM was wounded as a direct result of enemy action.  Without evidence that his wounds were received as a direct result of enemy action, the applicant is not entitled to correction to the FSM's record by award of the Purple Heart or changing the criteria for this award so the FSM could become eligible for the award. 

4.  In all cases the burden of proof rests with the applicants or persons on their behalf to submit substantiating proof of an entitlement for award of the Purple Heart in the absence of evidence in their records.  

5.  In view of the foregoing, there is no basis for granting the applicant’s request.

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)                                         AR20080006151



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ABCMR Record of Proceedings (cont)                                         AR20080006151


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