IN THE CASE OF:	  

	BOARD DATE:	  29 May 2008

	DOCKET NUMBER:  AR20080007832 


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.

2.  The applicant states that he was injured by enemy fire on 17 January 1946 during his service in World War II (WWII).

3.  The applicant submitted an illegible copy of his WD AGO Form 53-98 (Military Record and Report of Separation, Certificate of service), dated 14 September 1946, and a copy of an undated medical summary report, 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 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 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.

3.  The applicant's WD AGO Form 53-98 shows he was commissioned as a second lieutenant (2LT) in the Army of the United States and entered active duty on 17 April 1945 in the Infantry Branch.  This form further shows he performed duties as a Unit Training Officer.  This form also shows that, at the time of his discharge, he was assigned to the Military Police Command.

4.  The applicant's WD AGO Form 53-98 shows he served in the Asiatic-Pacific Theater from on or about 15 October 1945 through on or about 5 May 1946.

5.  The applicant's WD AGO Form 53-98 shows he completed approximately 8 months of continental service and approximately 6 months and 24 days of foreign service.  He was honorably separated on, what appears to be, 10 September 1946.

6.  Item 31 (Battles and Campaigns) of the applicant’s WD AGO Form 53-98 does not show he participated in any campaigns during WWII

7.  Item 33 (Decorations and Citations) of the applicant's AGO Form 53-98 shows the applicant was awarded the Asiatic-Pacific Campaign Medal, the World War II Victory Medal, and the American Campaign Medal.  Item 33 does not show award of the Purple Heart.

8.  Item 34 (Wounds Received in Action) of the applicant's WD AGO Form 53-98 contains the entry "None."

9.  The applicant's available records do not contain General Orders awarding him the Purple Heart. 

10.  The applicant submitted a medical "FINAL SUMMARY" report that shows he "was ambushed by a Moro on 17 January 1946, on Mindinao [sic], Philippine Islands, while riding in a jeep on an inspection tour, receiving a gunshot wound of the lower third, left forearm, moderately severe and a fracture, compound, comminuted, complete, lower 1/3, left radius.  Debridement of wound, 17 January 1946 at the 90th Field Hospital, Philippines Islands; was evacuated to the 44th general Hospital, Leyte Island, Philippines Islands, where on 15 February 1946, a sequestrectomy was done and the forearm placed in a  plaster cast.  He was evacuated to the 4th General Hospital on 24 January 1946, Philippines Islands."  

11.  The Purple Heart was established by General George Washington at Newburgh, New York on 7 August 1782 during the Revolutionary War.  It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action.

12.  The term Moro Rebellion refers to the U.S  military operations in Moroland, Philippines, from the declared end of the Spanish-American War to the hand-over of control of the Moro Province to American civil authorities in 1913 with the actual end of the extended Spanish-American War hostilities. The word "Moro" was originally a derogatory term for Filipino Moslems, who primarily inhabit the Sulu Archipelago and the large island of Mindanao.  This area of the Philippines is sometimes known as Moroland.

13.  The Pacific War was that part of WWII, and preceding conflicts, that took place in the Pacific Ocean, its islands, and in East Asia, between 7 July 1937 and 14 August 1945.  The most decisive actions took place after Japan attacked various countries, who together came to be known as the Allies (or Allied powers), on or after 7 December 1941, including an attack on Pearl Harbor. In Japan, 14 August 1945 is considered to be the day that the Pacific War ended. However, Imperial Japan actually surrendered on 15 August 1945, and this day became known in the English-speaking countries as "V-J Day" (Victory over Japan).  The formal Instrument of Surrender was signed on 2 September 1945, on the battleship USS Missouri, in Tokyo Bay.  The surrender was accepted by General Douglas MacArthur as "Supreme Commander for the Allied Powers", with representatives of several Allied nations, from a Japanese delegation led by Mamoru Shigemitsu and Yoshijiro Umezu.  Following this period, General MacArthur went to Tokyo to oversee the postwar development of the country. This period in Japanese history is known as the occupation.

14.  Although WWII ended in August 1945, there are cases of Soldiers, who had enlisted in 1946, receiving the World War II Victory Medal without having been a veteran of World War II.  The reason for this late date is that the President of the United States at the time, President Harry S. Truman, did not declare an official end of hostilities until 31 December 1946.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to award of the Purple Heart.

2.  The applicant was commissioned as a 2LT and entered active service on 17 April 1945.  He subsequently departed the United States on or about 15 October 1945 and arrived in the Pacific Theater on or about 31 October 1945. However, a few weeks prior to his arrival in the Pacific Theater, the formal Instrument of Surrender was signed on 2 September 1945, on the battleship USS Missouri, thus ending the war in the Pacific.  

3.  The surrender of  Japan on 2 September 1945 does not mean that acts of violence against U.S. military and civilian personnel ended; rather, for the purpose of awarding the Purple Heart, it means that injuries and wounds sustained by military personnel were no longer considered "in an action against an enemy of the United States" or "in an action with an opposing armed force of a country in which the Armed Forces of the United States are or have been engaged." 

4.  The applicant’s service in the Pacific Theater is well documented and is not in question.  Furthermore, the applicant's unfortunate gunshot wound in the Philippines, and his subsequent medical treatment, are also not in question.  Nevertheless, at the time of the applicant's unfortunate incident in the Philippines, the United States was not at war with nor was the Philippines, as a country and people, considered an enemy of the United States.  It appears that the applicant was shot by a citizen of the Philippines, not by an enemy of the United States.  Therefore, although President Truman declared 31 December 1946 as the official end of WWII, the applicant's gunshot wound was not the result of hostile action, which makes him ineligible for award of the Purple Heart in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



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       _   _______   ___
       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)                                         AR20080007832



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ABCMR Record of Proceedings (cont)                                         AR20080007832



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