IN THE CASE OF:	  

		BOARD DATE:	       17 September 2008

		DOCKET NUMBER:  AR20080010564 


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 her deceased spouse, a deceased former service member (FSM), be awarded the Purple Heart.

2.  The applicant’s daughter states that her father received a traumatic brain injury for which he received a service-connected disability pension.  He had a lifetime of nightmares, reliving battle scenes and awakening their household.  He could no longer drive safely following World War II.

3.  The applicant provides the FSM’s death certificate; a doctor’s statement indicating she requires assistance in filling out papers; their marriage certificate; the FSM’s WD AGO Form 53-55 (Enlisted Record and Report of Separation); the FSM’s father’s diary from the period of the Ardennes Campaign and a typewritten transcription of the diary.

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 FSM’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 FSM’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 FSM was inducted into the Army on 11 September 1942 and entered active duty on 24 September 1942.  He arrived in the European Theater of Operations on 2 November 1944.

4.  The applicant provided the FSM’s diary for the period he participated in the Ardennes Campaign and highlighted the 18 January 1945 entry on the typed transcription of the diary:

      	“Woke up in new room full of ammo and the Germans were zeroing in with 88s.  They hit around us all day one landing 15 ft away & tearing our roof off.  The thick walls saved me, I believe.  Sniper fire all around me and burp guns.  In evening I rode back to other (sic) too sick.  I went to medics.  They took me away in Amb They called it execution (sic).”

5.  The next entry in the diary and the typed transcription is for 24 January 1945:  “I was moved from the hospital to near (sic) echelon….”

6.  The FSM departed the theater on 24 December 1945 and was separated on 11 January 1946.

7.  The FSM’s WD AGO Form 53-55 shows he was awarded the Combat Infantryman Badge, the Marksman Marksmanship Qualification Badge with Rifle bar, the Sharpshooter Marksmanship Qualification Badge with Carbine bar, the European-African-Middle Eastern Campaign Medal, the American Campaign Medal, the Army Good Conduct Medal, and the World War II Victory Medal.


8.  Item 34 (Wounds Received in Action) of the FSM’s WD AGO Form 53-55 contains the entry, “NONE.”

9.  Army Regulation 600-8-22 (Military Awards) states 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.

10.  The Office of The Surgeon General has been working with the U. S. Army Human Resources Command to establish a policy for awarding the Purple Heart for traumatic brain injuries.  Any recommendations made would have to be staffed through the Secretary of the Army to the Secretary of Defense.  As of    10 September 2008, no guidance has been issued concerning awarding the Purple Heart for traumatic brain injuries.

DISCUSSION AND CONCLUSIONS:

1.  The FSM’s diary entry for 18 January 1945 has been carefully considered.  While he indicated that he went to the medics because he was sick, he does not indicate and there is no other evidence to indicate what the sickness was or what diagnosis was made by hospital personnel.  

2.  Regrettably, there is insufficient evidence on which to base award of the Purple Heart in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx____  __xx____  ___xx___  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 FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of the FSM’s service in arms.




      _______ _   xxxx___   ___
               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)                                         AR20080010564





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ABCMR Record of Proceedings (cont)                                         AR20080010564



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