IN THE CASE OF:	  

		BOARD DATE:	  
		DOCKET NUMBER:  AR20080011102


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 he was wounded in Germany on 6 August 1945 when a booby trap exploded.

3.  The applicant provides two each Form No. 52b (Medical Department, USA) and a continuation sheet.

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 served as an enlisted Soldier in the Army of the United States (AUS) from 29 April 1943 through 2 July 1946.  On 3 July 1946, he enlisted in the Regular Army (RA) and served until 9 August 1949.  On 10 August 1949, he was appointed an RA warrant officer and he served in that capacity until he was appointed as a US Army Reserve (USAR) commissioned officer  in the grade of second lieutenant (2LT) on 4 June 1951 and an AUS 2LT on 8 July 1951 with a date of rank of 15 July 1951.  Thereafter, he served as a commissioned officer until he was retired for length of service as a USAR major on 31 May 1964.

3.  During his first period of active duty service, the applicant was an enlisted Soldier in the Corps of Engineers.  His WD AGO Form 53-55 (Enlisted Record and Report of Separation -  Honorable Discharge) for the period 29 April 1943 through 2 July 1946 shows:

	a.  He departed the United States for the European-African-Middle Eastern (EAME) Theater of Operations on 19 November 1943 and arrived in North Africa on 27 November 1943.

	b.  He participated in the following campaigns: Naples-Foggia, Rome-Arno, Southern France, Rhineland, and Central Europe.  He was awarded a Bronze Arrowhead for participation in the assault landing in Southern France.

	c.  He was awarded the Good Conduct Medal, EAME Campaign Medal, World War II Victory Medal, Army of Occupation Medal with Germany Clasp, Distinguished Unit Badge (Citation), and the Croix de Guerre Order of the Day with Palm.

	d.  Item 34 (Wounds Received in Action) of his WD AGO Form 53-55 shows the entry "None."

4.  Evidence submitted by the applicant and also contained in his service records shows that, on 6 August 1945, in Schwarzenborn, Germany, the applicant was at Internment Camp #93 "inspecting concertina wire at west end of camp.  He accidentally stepped on a booby trap grenade at 1430 hours 6 August 1945."  The evidence also states he received "Shell Fragment Wound, Penetrating, Left Forehead & Chin, Left Upper Arm, Left Thigh, Left Foot, Right Lower Leg."

5.  On 30 April 1945, Adolf Hitler committed suicide in Berlin and the negotiation of surrender terms began.  The German goal was to conditionally surrender to the Americans and British so that German forces might concentrate on repelling the advance of the Soviet forces on Berlin.  This effort was rejected by the Allies and two separate surrender documents were signed.  The war in Europe ended in May 1945 and hostilities ceased.

	a.  On 7 May 1945, German Colonel General Alfred Jodl surrendered unconditionally to General of the Army Dwight D. Eisenhower and Allied forces in Reims, France.

	b.  On 8 May 1945, German General Field Marshal Wilhelm Keitel surrendered to Soviet Marshal Georgi Zhukov.

6.  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.  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.  This regulation also provides that there are no time limitations for requests for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the Purple Heart for wounds received on 6 August 1945.

2.  The Purple Heart is awarded for wounds sustained as a result of hostile action [emphasis added].  Although there can be no doubt the applicant suffered shell fragment wounds, his wounds were not the result of hostile action.  All hostilities ended in Europe on 7-8 May 1945; the applicant accidentally tripped a mine on 6 August 1945, some 3 months after hostilities ceased.  

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, 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.

4.  The applicant and all others concerned should 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.


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)                                         AR20080011102



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ABCMR Record of Proceedings (cont)                                         AR20080011102



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