IN THE CASE OF:
BOARD DATE: 16 December 2008
DOCKET NUMBER: AR20080012409
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, as the nephew of a deceased former service member (FSM), requests that the FSM be awarded the Purple Heart.
2. The applicant states, in effect, that the FSM was killed in action during World War II.
3. The applicant provides a DA Form 1577 (Authorization for Issuance of Awards), dated 28 December 1993; the FSM's Report of Death; the FSM's spouse's death certificate; 1993 Congressional documentation; and his mother's birth certificate.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The FSMs 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 FSMs 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. A Report of Death, dated 28 February 1944, shows the FSM, a private first class, was killed in action on 26 January 1944 in the North Africa area.
4. The applicant provided a DA Form 1577 which shows the Good Conduct Medal, the European-African-Middle Eastern Campaign Medal, the World War II Victory Medal, and the World War II Lapel Button were authorized for issuance on behalf of the FSM.
5. 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 3 in 1932. It was awarded in the name of the President of the United States to members of the Armed Forces 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, has been wounded or killed, or who has died or may die after being wounded as a result of hostile action.
DISCUSSION AND CONCLUSIONS:
The evidence of record shows the FSM was apparently a private first class when he was killed in action on 26 January 1944. Although no records are available, it would be appropriate to issue the applicant a Transcript of Military Record (DA Form 1569) to show the FSM was killed in action on 26 January 1944 in the rank of private first class and awarded, posthumously, the Purple Heart for wounds received in action on 26 January 1944.
BOARD VOTE:
____X____ ___X_____ ___X_____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
a. awarding to him, posthumously, the Purple Heart for wounds received in action on 26 January 1944 in the North Africa area;
b. issuing the Purple Heart to the applicant; and
c. issuing the applicant a Transcript of Military Record to show the FSM was killed in action on 26 January 1944 in the rank of private first class and that he was awarded the Purple Heart, the Good Conduct Medal, the European-African-Middle Eastern Campaign Medal, the World War II Victory Medal, and the World War II Lapel Button.
_______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.
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