IN THE CASE OF:	  

		BOARD DATE:	        30 OCTOBER 2008

		DOCKET NUMBER:  AR20080010406 


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 and that Item 30 (Military Occupational Specialty and No.) of his WD AGO Form 53-55 (Enlisted Record and Report of Separation) be changed to "Cannoneer."

2.  The applicant states, in effect, that he was a Number 2 cannoneer who loaded the gun.  He contends that his unit fired more rounds than any other unit during the African campaign and that he sustained a hearing loss because no ear protection was provided.  He requests award of the Purple Heart based on a hearing loss at the advice of The American Legion. 

3.  The applicant provides a copy of his WD AGO 53-55; a copy of his WD AGO Form 100 (Separation Qualification Record); and a copy of a letter he wrote to the Department of Veterans Affairs (DVA) on 10 July 1996, 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.  After prior service in the Army National Guard, the applicant served on active duty from 10 February 1941 through 4 October 1945.  His WD AGO 53-55 shows that he served in the European-African-Middle Eastern Theater of Operations.  He is credited with participation in the Tunisia campaign.  This document also shows that his MOS was Clerk, General.

4.  The applicant's WD AGO Form 100 shows that he held assignments in MOS 844 (Cannoneer) for 20 months and 055 (Clerk, General) for 32 months.  This document also shows that he acted as a file clerk at the office of the American Embassy in Algiers.  He maintained and filed reports and statistics; compiled files of diplomatic papers including cablegrams; worked under the direct supervision of the American Ambassador; and answered telephone calls.  He also worked as the message center chief at Fort Bragg, North Carolina.  

5.  There are no orders in the applicant's available record to show he was awarded the Purple Heart.  Item 34 (Wounds Received in Action) of his WD AGO Form 53-55 shows "NONE."  The applicant authenticated this form with his own signature.  There are no medical records in the available military personnel file that show the applicant sustained wounds as a result of hostile action or that show he was treated for wounds sustained as a result of hostile action.  The applicant's service medical records were not available for review.

6.  The applicant provided a copy of a letter he sent to the DVA on 10 July 1996 in response to the DVA's denial of his request for service-connection for a hearing loss.  In this letter he contends that he was a cannoneer for over 3 years in the Tunisian campaign in North Africa.  

7.  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 an 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 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 performed duties as a cannoneer during the African/Tunisian campaign.  He has a hearing loss as a result of this duty.

2.  The available evidence shows that he was assigned as a general clerk to the American Embassy in Algiers.  There is no evidence that he performed duties as a cannoneer in Tunisia.  The applicant has not provided any evidence to support his contention that he performed cannoneer duties in Tunisia.  As such, the preponderance of evidence shows he worked as a general clerk at the American Embassy in Tunisia. 

3.  There are no orders in the applicant's record to show award of the Purple Heart.  There are no medical records showing the applicant was wounded or injured as a result of hostile action.  The applicant has not provided any medical treatment records to show he has a hearing loss that is associated with his service during World War II.

4.  In order to be awarded the Purple Heart, the applicant must show evidence that his alleged wounds or injuries were sustained as a result of hostile action or show that he was treated for wounds sustained as a result of hostile action.    Therefore, there is insufficient evidence upon which to grant the applicant's request.

5.  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 did not submit any evidence that would satisfy this requirement.

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.



      ________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)                                         AR20080010406



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ABCMR Record of Proceedings (cont)                                         AR20080010406



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