IN THE CASE OF:	  

		BOARD DATE:	  10 February 2009

		DOCKET NUMBER:  AR20080012327 


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, in effect, award of the Purple Heart (PH).

2.  The applicant states, in effect, that while moving under black-out conditions in the vicinity of Reims, France, on New Year's Day 1945, a German plane strafed the unit's vehicles and he sustained a shrapnel wound above his left eye during this strafing.

3.  The applicant provides a self-authored statement; three third-party witness statements; and a Radiology Consultation Report, dated in 1991, 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 (NPRC) in 1973.  It is believed his records were lost or destroyed in that fire.  This case is being considered using a reconstructed NPRC file that includes his separation document (WD AGO Form 53-55, Enlisted Record and Report of Separation-Honorable Discharge).

3.  The applicant’s WD AGO Form 53-55 shows he was inducted into the Army of the United States and entered active duty on 28 May 1943.  It also shows he held military occupational specialty 601 (Anti-Aircraft Machine Gunner) and that he served in the European theater of operations from 13 November 1944 to 11 December 1945.  It further indicates that he participated in the Rhineland and Central Europe campaigns of World War II.

4.  Item 33 (Decorations and Citations) of the applicant's WD AGO Form 53-55 shows that during his active duty tenure, he earned the World War II Victory Medal, Army Good Conduct Medal, American Campaign Medal, and European-African-Middle Eastern Campaign Medal with 2 bronze service stars.  Item 34 (Wounds Received in Action) contains the entry "None" and the applicant authenticated the separation document with his signature in item 56 (Signature of Person Being Separated) on 9 January 1946, the date of his discharge.

5.  There are no documents in the NPRC file that indicate the applicant was ever recommended for or awarded the PH by proper authority while serving on active duty.  There are also no medical treatment records on file that indicate he was ever treated for a combat-related wound or injury during his active duty tenure.

6.  The applicant provides witness statements from three individuals who indicate they served with the applicant during World War II, attest to the German strafing of their vehicles by a German plane near Reims, France, and remember individuals being wounded or killed by shrapnel during this incident.  Neither of these individuals specifically indicates they personally witnessed the applicant being wounded during this action.

7.  The applicant provides a Radiology Consult Report, dated 22 July 1991, which indicates that a magnetic resonance image (MRI) taken of the applicant’s brain stem revealed a ferromagnetic artifact in the region of the left maxillary sinus and the orbit which on plain films corresponds to a metallic foreign body in the soft tissues anterior to the maxillary sinus just lateral to the nose.

8.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to award a PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that the wound was treated by military medical personnel, and a record of this medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the PH based on being wounded in action during World War II was carefully considered.  However, by regulation, in order to support award of the PH, there must be evidence that the wound for which the award is being made was received as a result of enemy action, that it required treatment by military medical personnel, and a record of this treatment must have been made a matter of official record.

2.  The third-party witness statements provided by the applicant while confirming the strafing incident, fail to provide eye-witness confirmation that the applicant was one of the members of the unit wounded during this incident.  Further, there are no medical treatment records in the NPRC file or provided by the applicant that indicate he was ever wounded in action or treated for a combat-related wound during World War II, or that verifies that the ferromagnetic artifact detected in his 1991 MRI was the result of a World War II wound.

3.  The applicant's WD AGO Form 53-55 fails to include the PH in the list of awards contained in item 33 and the entry "None" is contained in item 34, which indicates he was never wounded in action.  The applicant authenticated the WD AGO Form 53-55 with his signature in item 56 on the date of his discharge in January 1946.

4.  Absent any documentary evidence confirming that the applicant was wounded in action or medical treatment records that show he was treated for a combat related wound during World War II, there is a presumption of regularity attached to the entries in item 33 and item 34 of his WD AGO Form 53-55.  As a result, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Therefore, it would not be appropriate or serve the interest of all those who served in World War II and who faced similar circumstances to grant the requested relief.

5.  The applicant and all others concerned should know that the decision regarding award of the PH 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)                                         AR20080012327



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ABCMR Record of Proceedings (cont)                                         AR20080012327



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