IN THE CASE OF:	  

		BOARD DATE:	  30 October 2008

		DOCKET NUMBER:  AR20080013257


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, that he be provided documentation of a Purple Heart (PH) awarded to his deceased father, a former service member (FSM).

2.  The applicant states, in effect, that in late 1943 or early 1944, the FSM received wounds to his leg, and while in a field hospital in North Africa, a general presented the PH.  He claims he tried to get documentation related to this award; however, military records were destroyed in a fire at the National Personnel Records Center (NPRC) and he has been unable to do so.

3.  The applicant provides the FSM’s death certificate; his birth certificate; and a line of duty letter, dated 10 March 1944, in support of the 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 FSM’s military record is not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the NPRC in 1973.  It is believed that the FSM’s records were lost or destroyed in that fire.  However, there were sufficient documents on file for the Board to conduct a fair and impartial review of this case.  This case is being considered using a disability retirement packet pertaining to the FSM that remains on file at the NPRC.  No separation document was included in this packet, nor was one provided by the applicant.

3.  The disability retirement packet pertaining to the FSM contains a statement of service (AGO Form 01393) prepared in September 1944, which indicates the FSM served in the Regular Army in an enlisted status from 7 July 1938 through 6 July 1941, and in an enlisted status in the Army of the United States (AUS) from 27 December 1941 through 19 October 1942, and in a commissioned officer status in the AUS from 20 October 1942 through 16 September 1944.

4.  The packet also contains documentation that confirms that on 18 February 1944, the FSM accidently shot himself in the head while cleaning weapons, and that the medical condition that resulted from this accidental wounding was the basis for his disability retirement processing.

5.  The disability retirement packet provides no information indicating that the FSM was ever wounded in action, or that he was ever awarded the PH by proper authority while serving on active duty.

6.  The applicant provides a copy of a Headquarters, 9th Battalion, 1st Replacement Depot, Personnel Center No. 2, letter dated 10 March 1944, which indicates that an investigating officer had determined the FSM’s wounding on 18 February 1944 was incurred in the line of duty.  This letter provides no information regarding any combat related wounds and refers only to the applicant’s accidental self-inflicted wound of February 1944.

7.  Army Regulation 600-8-22 (Military Awards) contains the Army’s awards policy.  Paragraph 2-8 contains guidance on the PH.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to support award of 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 it required treatment by a medical officer, and a record of this treatment must be made a matter of official record.  Paragraph 2-8h provides examples of injuries that clearly do not support awards of the PH.  Included in these examples is accidental wounding not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the FSM was awarded the PH in a battlefield presentation was carefully considered.  However, there is insufficient evidence to support this claim.

2.  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.

3.  The evidence in this case fails to show the FSM was ever wounded as a result of enemy action.  The disability retirement packet on file confirms that the wound that resulted in the FSM’s separation was a self-inflicted wound he received while cleaning weapons on 18 February 1944.  Although this wounding was determined to be in the line of duty, there is no evidence that suggests it was the result of or caused by enemy action, or that it resulted in award of the PH.  There is no information on file that confirms the FSM was ever wounded in action in late 1943 or early 1944, or that he was ever awarded the PH while in a field hospital in North Africa.

4.  Absent any evidence confirming the FSM was wounded as result of enemy action, or that shows he was awarded the PH by proper authority while serving on active duty, 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 during World War II and who faced similar circumstances to grant the requested relief in this case.

5.  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 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)                                         AR20080013257



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ABCMR Record of Proceedings (cont)                                         AR20080013257



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