IN THE CASE OF:	  

		BOARD DATE:	  17 September 2008

		DOCKET NUMBER:  AR20080009755 


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 correction of his records to show he was discharged due to injuries received in battle, and award of the Purple Heart. 

2.  The applicant states that his records do not reflect him being severely wounded in March 1948, approximately 40 miles outside of Naples, Italy.  He would like his record corrected to show he was discharged due to injuries received in battle and thus receive the Purple Heart. 

3.  The applicant provides a copy of his Honorable Discharge Certificate, dated 14 August 1945, 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 53-55 shows he was inducted in the Army of the United States on 29 August 1942 and entered active duty at Jefferson Barracks, Missouri, on 12 September 1942.  He was trained in military occupational specialty (MOS) 601 (Antiaircraft Artillery Automatic Weapons Crewman).  This form also shows that he was assigned to the Battery B, 533rd Antiaircraft Artillery (AAA), Automatic Weapons Battalion at the time of his separation.

4.  The applicant's WD AGO Form 53-55 shows he served in the European-African-Middle Eastern (EAME) Theater from 9 March 1943 to 17 November 1944.

5.  The applicant's AGO Form 53-55 shows he completed 1 year, 1 month, and 26 days of continental service and 1 year, 9 months, and 7 days of foreign service.  He was honorably discharged on 24 August 1945 with a Certificate of Disability for Discharge (CDD).

6.  Item 31 (Battles and Campaigns) of the applicant’s AGO Form 53-55 shows he participated in the Tunisia campaign during World War II (WWII).

7.  Item 33 (Decorations and Citations) of the applicant's AGO Form 53-55 shows he was awarded the Good Conduct Medal, three Overseas Service Bars, and the European-African-Middle Eastern Campaign Medal with one bronze service star.  Item 33 does not show award of the Purple Heart.

8.  Item 34 (Wounds Received in Action) of the applicant's WD AGO Form 53-55 contains the entry "None."

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

10.  The applicant’s information, dated 17 January 2007, from the Hospital Admission Cards, created by the Office of the Surgeon General, shows the applicant was admitted to a general hospital on 23 September 1944 due to a disease in his knee.   


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.  Army Regulation 672-5-1 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained 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 been treated by medical personnel, and the medical treatment must have been made a matter of official records.

13.  Army Regulation 615-360 (Enlisted Men-Discharge, Release from Active Duty), dated 16 April 1943, states in pertinent part, that when an enlisted man with less than 20 years of service stationed in the United States becomes unfit for military service because of physical disability or while stationed overseas, is returned to the United States for physical disability, he will be hospitalized in a military hospital in the United States until his physical condition has reached a point where he can be returned to duty or until it can be determined that the disability is such that physical rehabilitation for military service is not feasible.  

14.  When an enlisted man is hospitalized in a station hospital and it is determined that he is to be discharged on a Certificate of Disability for Discharge (CDD), he will be transferred without the loss of grade by his unit commander to the station complement within 48 hours and will be carried as surplus.  The commander of the station hospital is responsible for initiating the request for the CDD.  As disability occurring in the service is usually made on the basis of a claim for pension, special care is always taken to set forth fully in the CDD the origin of the disability and to describe particularly the injury or disease and the disability arising there from.  The certificate will state if the disability was incurred in line of duty or not in line of duty, together with the facts; if the disability was incurred as a result of the Soldier’s own misconduct; if the enlisted member declined treatment for the relief of the disability; or if the disability was a result of a preexisting condition that was aggravated by military service.





DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to correction of his records to show he was discharged due to injuries received in battle, and award of the Purple Heart. 

2.  With respect to the applicant’s discharge due to injuries received in battle, there is no evidence in the available record and the applicant did not provide any substantiating evidence that shows his disability resulted from a battle injury or disease.  The Certificate of Disability for Discharge will state if the disability was incurred in line of duty, together with the facts; if the disability was incurred as a result of the Soldier’s own misconduct; if the Soldier declined treatment; or if the disability was a result of a preexisting condition that was aggravated by military service.  The applicant’s record is void of his CDD and the applicant did not provide a copy with his application.  Therefore, there is insufficient evidence to determine the applicant’s exact source of disability.   

3.  With respect to award of the Purple Heart, there are no General Orders that show the applicant was awarded the Purple Heart and there is no evidence in his available service personnel records which shows he was wounded or injured as a result of hostile action or treated for such wounds.  Regrettably, absent evidence which conclusively shows that the applicant sustained wounds or injuries as a result of hostile action, that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is insufficient basis for awarding the Purple Heart to the applicant in this case.

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 our Nation.  The applicant and all Americans should be justifiably 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)                                         AR20080009755



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ABCMR Record of Proceedings (cont)                                         AR20080009755



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