IN THE CASE OF:
BOARD DATE: 24 November 2008
DOCKET NUMBER: AR20080010070
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 that he be issued the award of the Purple Heart.
2. The applicant states, in effect, that his Separation Qualification Record (WD AGO Form 100) shows he was wounded in action while serving with the 26th Division. He states he was wounded in action while in combat and his records show this. He also states that he has been trying to obtain his records and that it has taken him years to obtain them.
3. The applicant provides a copy of his WD AGO Form 53-55 (Enlisted Record and Report of Separation) and WD AGO Form 100.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records were lost or destroyed in a fire at the National Personnel Records Center in 1973. The records available to the Board
were provided by the applicant and are sufficient for the Board to conduct a fair and impartial review of this case. The primary record available to the Board is the applicants WD AGO Form 53-55 and WD AGO Form 100.
3. The applicant's reconstructed record shows he was inducted into the Army of the United States on 15 February 1943 and entered active duty on 22 February 1943. He completed the necessary training and was awarded military occupational specialty (MOS) 605 (Ammunition Bearer).
4. He served in the European Theater of Operations (ETO) during the period from 7 September 1944 to 3 November 1945. He was honorably discharged from active duty on 4 February 1946. He completed 2 years, 11 months, and
13 days of service.
5. Item 33 (Decorations and Citations) of his WD AGO Form 53-55 shows the applicant was awarded the American Service Medal, European-African-Middle Eastern Service Medal, Good Conduct Medal, and the World War II Victory Medal. However, it does not show he was awarded the Purple Heart.
6. Item 34 (Wounds Received in Action) of his WD AGO Form 53-55 contains the entry "None."
7. The applicants WD AGO Form 100, in Item 13 (Title, Description, Related Civilian Occupation) shows the entry "Was awarded the combat Infantry badge while serving with the 26th Infantry Division in the European theatre of war. Was wounded in action."
8. However, his record does not indicate as to what type of injury, the date and location of the injury or whether or not the applicant was treated by medical personnel.
9. In addition, there are no medical records which show the applicant sustained wounds as a result of hostile action or was treated for an injury.
10. Army Regulation 600-8-22 (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 required treatment by medical personnel, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that he should be awarded the Purple Heart.
2. However, there is no evidence in his available records to show he was wounded or injured as a result of hostile action or treated by medical personnel for his wounds.
3. The applicant's statement and WD AGO Form 100 was considered. However, there is insufficient evidence to award the Purple Heart.
4. In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit sufficient evidence that would satisfy this requirement; therefore, the applicant is not entitled to award of the Purple Heart
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) AR20080010070
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ABCMR Record of Proceedings (cont) AR20080010070
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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