IN THE CASE OF:	  

		BOARD DATE:	       17 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080010232 


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.

2.  The applicant states that he was riding in the back of a weapons carrier with several other Soldiers on the way to the front line when a tree came crashing down from the side of the road striking him on the head, left shoulder and forearm.  He states that he was wearing his steel helmet at the time; however, he was unconscious for a while and he woke up in a tent hospital.  He states that it was quite possible that earlier artillery attacks may have dislodged the tree.  He states that the injury he received required him to be transferred from the European Theater of Operations to Lowell General Hospital at Fort Devens, Massachusetts.  

3.  The applicant states that he received a letter from a Veterans Service Assistant informing him that it would take one month or longer before his award of the Purple Heart.  He states that he was surprised because he had no idea that he had been considered to receive the award until he was notified.  He states that someone must have gone through his files somewhere and found letters (one from the battalion surgeon and one from the Medical Corps Registrar).  He states that had he known about the letters, he would have taken action on his request 63 years ago. He states that when he did not receive his award, he contacted his Congresswoman’s office to find out if there was a military organization close to his home that could assist him.  He states that the Congresswoman’s office did receive a response; however, no mention was ever made regarding his files being lost in the fire.  The applicant states that he finally received a hand written letter from an individual who stated that he would be handling the case.  He states that he never heard from that individual again.  He states that when he contacted the Department of Veterans Affairs (VA) in Waco, Texas he was sent a package containing 500 pages of his records and that is when he found the letters from the battalion surgeon and the Medical Corps Registrar.  The applicant states that in view of the fact that he was less than 25 miles from the front line moving under “black-out” conditions, he believes that he is entitled to the award of the Purple Heart.  The applicant concluded by stating that he had to be fitted for a full body and arm cast.

4.  The applicant provides in support of his application, an undated statement explaining the events that lead to request for the Purple Heart; a copy of a Certificate from the Registrar, Army Service Forces Convalescent Hospital dated 7 November 1945, certifying that the applicant is entitled to the Purple Heart; a copy of a notification from an Administrative Assistant to the Battalion Surgeon, addressed to the Personnel Officer, Army Service Forces Convalescent Hospital, dated 31 October 1945; and a copy of a notification addressed to him, from a Veterans Service Assistant dated 29 May 2003.

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 was inducted into the Army on 29 March 1943 and he successfully completed his training as an administrative noncommissioned officer.  He was transferred to the European Theater of Operation on 21 December 1943.

3.  The applicant’s records show that on 19 January 1945, he was admitted to the 51st Evacuation Hospital after he was struck on the left forearm by a tree on 17 January 1945.  According to the Abstract of the Clinical Record Final 


Summary, the tree fell when it was struck by the weapons carrier in which he was riding.  The applicant was diagnosed with a fracture, simple, avulsion type, left humerus.  He was transferred to Lovell General Hospital at Fort Devens, Massachusetts, on 24 March 1945 and he was transferred to an Army Service Forces Convalescent Hospital on 2 June 1945.

4.  On 31 October 1945, an Administrative Assistant to the Battalion Surgeon, Army Service Forces Convalescent Hospital, notified the Personnel Officer that it was the opinion of the Battalion Surgeon that the applicant was entitled to the Purple Heart; that the injury was incurred when a truck in which he was driving struck a tree while proceeding to the front while he was in France; and that the vehicle was proceeding under blackout conditions and within enemy artillery range.

5.  On 7 November 1945, the Registrar, Army Service Forces Convalescent Hospital, prepared a certificate, certifying that the applicant is entitled to the Purple Heart in accordance with Army Regulation 600-45.

6.  On 24 December 1945, the applicant was honorably discharged under the provisions of Army Regulation 615-365, for the Convenience of the Government, due to demobilization.  The DD Form 214 that he was furnished at the time of his discharge shows that he was awarded the American Service Medal, the Good Conduct Medal, the European-African- Middle Easter Service Medal and the World War II Victory Medal.  Block number 34 (WOUNDS RECEIVED IN ACTION) on the DD Form 214 reads “None.”

7.  The applicant was notified on 29 May 2003, by a Veterans Service Assistant that it would take approximately 1 month or longer before his Purple Heart and certificate would be sent to her office for forwarding to him.  

8.  On 14 August 2007, the applicant submitted an application to this Board requesting that he be awarded the Purple Heart.  On 5 September 2007, he was informed that a decision could not be made on his application as it was believed that his records were lost in a fire at the National Personnel Records Center in 1973.  He was also informed that that his application had not been denied and that he could reapply if he could submit the necessary supporting documents.

9.  Army Regulation 600-45 (Decorations), which governed the award of Army decorations until 23 August 1951, stated that for the purpose of considering an award of the Purple Heart, a “wound” is defined as an injury to any part of the 



body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was erroneously informed that he is entitled to the award of the Purple Heart.  

2.  The applicant’s contentions have been noted and the documents that he submitted in support of his application have been reviewed.  However, his records do not show that he is entitled to the award of the Purple Heart.

3.  While the accident that resulted in the applicant’s injuries may have occurred within artillery range, there is no evidence of record, nor has the applicant submitted any evidence that shows he sustained an injury from an outside force, element, or agent while in action in the face of an armed enemy; that the accident occurred as a result of a hostile act by the enemy; or that the vehicle in which he was traveling at the time, was under direct fire by the enemy.  

4.  According to the Abstract of the Clinical Record Final Summary, a tree fell when it was struck by the weapons carrier in which the applicant was riding during blackout conditions.  This event is the description of an accident and not a basis for granting the award of the Purple Heart. 

5.  Additionally, the DD Form 214, which the applicant signed at the time of his discharge, reads “None” in the block where wounds that he may have received as a result of hostile action would have been listed.  In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

6.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  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

__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.




      ___        XXX                ___
                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)                                         AR20080010232



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ABCMR Record of Proceedings (cont)                                         AR20080010232



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