IN THE CASE OF:	 

		BOARD DATE:	  30 September 2008

		DOCKET NUMBER:  AR20080008248 


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, in effect, that he should have been awarded the Purple Heart as a result of wounds (shrapnel wound) suffered at the Battle of the Bulge on 11 December 1945 (sic - should be 1944).  He also states that due to battlefield conditions and the casualties of superior officers, the proper paperwork was not filed at the time of the injury.  He was ordered to transfer Germany prisoners in a quickly manner which prevented further effort to file the paperwork in January 1945.  He further states that his primary physician’s letter confirms that a wound was suffered at the Battle of the Bulge. 

3.  In support of his application, the applicant provides copies of his WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge), his Honorable Discharge Certificate; a letter from his primary physician; a self-authored tribute to the unsung Soldiers who died at Omaha Beach; two newspaper articles titled, “Veterans get on-air tribute” and “Kids hear of wartime sacrifices firsthand”; a letter from a teacher supporting his application; and a petition to Congress, with 20 letters of support, to award him the Purple Heart.  

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 and documentation submitted by the applicant for the Board to conduct a fair and impartial review of this case.  

3.  The applicant's available military records show that he enlisted in the Regular Army on 14 August 1940.  He completed training in military occupational specialty (MOS) 502, Administrative Non-Commissioned Officer.  He served overseas in the European Theater of Operations (ETO) from 3 March 1942 to 8 April 1945 and was assigned to Headquarters Battery, 634th Antiaircraft Artillery Automatic Weapons Battalion.

4.  The applicant was honorably discharged from active duty, as a master sergeant, on 12 June 1945, for the Convenience of the Government at Demobilization.  

5.  Entries on the applicant's WD AGO Form 53-55 do not show award of the Purple Heart.  Item 31 (Military Qualification and Date) lists the following award: the Sharpshooter Marksmanship Qualification Badge, with Carbine Bar.  Item 33 (Decorations and Citations) lists the following awards:  the Good Conduct Medal; the American Defense Service Ribbon; the European-African-Middle Eastern Campaign Medal, with three bronze service stars; and six Overseas Service Bars. Item 55 (Remarks) lists award of the Honorable Service Lapel Button.

6.  Item 34 (Wounds Received in Action), of the applicant’s WD AGO Form
53-55, shows the entry, "None," to indicate he was not wounded while he served in the ETO.  The applicant affixed his right thumb print to Item 54 and placed his signature in Item 56 to indicate that the information recorded on the form was correct/complete to the best of his knowledge.

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

8.  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, and the medical treatment must have been made a matter of official record.

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 he was awarded the Purple Heart or that he was wounded or treated for wounds as a result of hostile action during World War II.  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 that he was wounded at the Battle of the Bulge has been considered; however, without evidence that he was treated for a wound or wounds received as a direct result of enemy action and that his injuries were made a matter of official record, the applicant is not entitled to award of the Purple Heart.  

3.  The documentation provided by the applicant was also considered; however, the overall merits of the case, including the submissions are insufficient as a basis to grant the applicant's request.  In all cases the burden of proof rests with the applicants to submit substantiating proof of their entitlement for award of the Purple Heart in the absence of evidence of records.

4.  The applicant’s WD AGO Form 53-55 shows he authenticated this form in his own hand and affixed his right thumb print in the appropriate space on the form on the date of his separation from the Army attesting that the information recorded on the form was, to the best of his knowledge, accurate and complete.

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:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during World War II.  The applicant and all Americans should be justifiable proud of his service in arms.



      _________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)                                         AR20080008248



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ABCMR Record of Proceedings (cont)                                         AR20080008248


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