IN THE CASE OF:	  

		BOARD DATE:	  3 September 2008

		DOCKET NUMBER:  AR20080007317 


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 award of the Purple Heart (PH).

2.  The applicant states that he injured his arm while a prisoner of war (POW) and received medical treatment in a German hospital.

3.  The applicant provides the following documents in support of his application:  War Claims Commission letter, dated 9 April 1953; third-party letters of support; and Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty or Retirement (WD AGO Form 38).

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 his records were lost or destroyed in that fire.  This case is being considered using a reconstructed NPRC file that includes his separation document (WD AGO Form 53-55), and documents he provided by the applicant, which includes a WD AGO Form 38.

3.  The applicant’s WD AGO Form 53-55 shows he enlisted in the Army and entered active duty on 7 February 1941.  It also shows he held military occupational specialty (MOS) 776 (Low Speed Radio Operator) and that he served in the European theater of operations from 18 October 1943 through 20 May 1945.  It further indicates that he was credited with participating in the Normandy, Northern France, Rhineland, and Ardennes campaigns of World War II.

4.  Item 33 (Decorations and Awards) of the applicant's WD AGO Form 53-55 shows that during his active duty tenure, he earned the American Defense Service Medal and European-African-Middle Eastern Campaign Medal with 4 bronze service stars.  Item 34 (Wounds Received in Action) contains the entry “None,” and the applicant authenticated the separation document with his signature in Item 56 (Signature of Person Being Separated) on 2 November 1945, the date of his discharge.

5.  The NPRC file on the applicant contains a correction to the applicant’s separation document (DD Form 215 which confirms he was POW from 20 December 1944 to 21 April 1945; and was awarded the POW Medal.

6.  There are no documents in the NPRC file that indicate the applicant was ever recommended for or awarded the PH by proper authority while serving on active duty.  There are also no medical treatment records on file that indicate he was ever treated for a combat-related wound or injury during his active duty tenure.

7.  The applicant provides a WD AGO Form 38 documenting his exit physical examination.  It shows he contracted dysentery in April 1945 while detained in a POW camp in Germany.  It also shows that he sustained frozen hands and feet in December 1944.  No other injuries are listed on this document.

8.  The applicant provides a copy of a letter written on his behalf to his mother by another Soldier.  A hand-written addendum, presumably written by the applicant, indicates the applicant was hospitalized at this time and unable to write himself due to injuries he sustained after being struck in his arms and legs by guards with the butt of a rifle.

9.  The applicant provides a second third-party letter from an individual who states that while engaged in an attack against the enemy, the applicant was injured in a vehicle crash when their jeep went off the road either by the force of an explosion, or as a result of the driver having been blinded from the light of the explosion.

10.  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.  The regulation further stipulates that a disease not directly caused by enemy agents is an example of an injury or wound which clearly does not justify award of the PH.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the PH was carefully considered.  However, 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 received as a result of enemy action, that it required treatment by military medical personnel, and a record of this treatment must have been made a matter of official record.  The available documentary evidence in this case fails to corroborate the claims of the applicant and those made in the third-party statements provided.  Further, the NPRC file is void of any indication that the applicant was ever wounded in action, or treated for a combat related wound or injury by military medical personnel, and it fails to show he was ever recommended for or awarded the PH by proper authority while serving on active duty.

2.  The only documentary evidence related to medical treatment available is the WD AGO 38 provided by the applicant.  While this form confirms the applicant contracted dysentery in April 1945, the governing regulation stipulates that a disease not directly caused by enemy agents is an example of an injury or wound which clearly does not justify award of the PH.  The WD AGO Form 38 fails to document medical treatment for a combat-related wound or injury.

3.  The PH is not included in Item 33 of the applicant's WD AGO Form 53-55.  Item 34 contains the entry “None,” which indicates he was never wounded as a result of enemy action, and he authenticated the separation document with his signature on the date of his separation.  

4.  In effect, the applicant's signature on the WD AGO Form 53-55 was his verification that the information it contained, to include the entries in Item 33 and Item 34, was correct at the time the separation document was prepared and issued.  Absent any documentary evidence corroborating the claims of the applicant and/or the information contained in the supporting third-party letters he provides, or that confirm he was wounded in action or awarded the PH by proper authority, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  As a result, it would not be appropriate or serve the interest of all those who served in World War II and who faced similar circumstances to grant the requested relief.

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)                                         AR20080007317



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ABCMR Record of Proceedings (cont)                                         AR20080007317



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