IN THE CASE OF:	

		BOARD DATE:	  26 March 2009

		DOCKET NUMBER:  AR20080013655 


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, in effect, that he was on the advance party in the invasion of Hollandia, New Guinea.  He states the Japanese bombed his unit and a bomb landed 140 feet from him.  He states that on the night of 28 May 1944 in Biak, New Guinea he was on the top of a radar when the operator inside started rotating the disk antenna and the Japanese starting shooting again.  He states he jumped off the radar and fell on the coral covered ground and his knee was bleeding in two places.  He states he applied sulfur powder and bandaged the injury and it healed in about one week.  He states he had trouble hearing after the bombing of Hollandia.  He had his hearing checked at the field hospital and he was found to have very bad hearing.  He was evacuated out of the combat environment the same day.  He states his knee gave him trouble in Australia and his knee was x-rayed and he was scheduled for surgery on the knee.  He states the doctor told him the ball joint had a burned crease on its face, but to him it looked like he had been shot.

3.  The applicant provides, in support of his application, his WD AGO Form 100 (Separation Qualification Record), 14 pages of excerpts from his service medical records, and five pages of documents from his Department of Veterans Affairs file.



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 service personnel records were lost or destroyed in a fire at the National Personnel Records Center in 1973.  The records available to the Army Board for Correction of Military Records were provided in part by the applicant and also obtained from alternate sources and are sufficient for the Board to conduct a fair and impartial review of this case.  

3.  The available evidence show the applicant was inducted into the Army of the United States on 8 January 1943 and he enter active duty on the same date.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 514 (Chief Radar Operator).

4.  The applicant served in the Asiatic-Pacific Theater of Operations from 20 April 1944 to about 4 January 1946.  He served in the New Guinea Campaign.

5.  Entries from the applicant's service medical records show he was treated for severe defective hearing.  Two entries indicate the cause of his defective hearing was unknown.  However, an entry dated 29 July 1944 indicates his "deafness, mixed type, right, chronic, moderate" was caused by recurring attacks of otitis media (an inflammation of the middle ear, or middle ear infection).

6.  Records of treatment, dated 22 September 1945, show the applicant was being treated for an ill defined condition of his right knee, manifested by weakness, attacks of instability and pain, following excision of the right medial meniscus (fibrocartilage semicircular band that spans the knee joint medially, a common site of injury, especially if the knee is twisted, as commonly occurs in contact sports), cause undetermined.



7.  A record of treatment, highlighted by the applicant, dated 15 January 1946, show the applicant was treated for a painful right knee.  The examiner noted the duration of the pain since April 1944 when the applicant sustained a concussion injury from a bomb in New Guinea.

8.  On 17 January 1946, the applicant was released from active duty by reason of demobilization.  Item 33 (Decorations and Citations) of the applicant's WD AGO Form 53-55 does not show he was awarded the Purple Heart.  Item 34 (Wounds Received in Action) contains the entry "NONE."

9.  Army Regulation 600-45 (Decorations), then in effect, which governed the award of Army decorations until 23 August 1951, stated the Purple Heart was awarded to citizens of the United States serving with the Army, who are wounded in action against an enemy of the United States, or as a direct result of an act of such enemy, provided such wound necessitated treatment by a medical officer.  This regulation stated that for the purpose of considering an award of the Purple Heart, a “wound” is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is entitled to the award of the Purple Heart.  However, he was not specific as to what wound or injury he received as a result of hostile action that he was basing his entitlement on.

2.  The applicant's medical records show treatment for hearing loss due to otitis media in July 1944.  There is no evidence or official documentation showing the applicant's hearing loss was sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.  

3.  The applicant's medical records show he was treated for a right knee injury.  However, the evidence does not show exactly when he sustained the original injury to his right knee.  He stated in his application he injured the knee on         28 May 1944 when he jumped off the top of a radar antenna and landed onto coral covered ground.  In the record of treatment, dated 15 January 1946, it was noted the injury was due to concussion from a bomb in April 1944.  In both cases there is no evidence the applicant was treated by a medical officer at the time of either incident.  

4.  There is no evidence or official documentation showing the applicant's right knee injury was sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.  The note from the examiner, dated 
15 January 1946, concerning the etiology of the applicant's right knee condition was based solely on a history provided by the applicant, 10 days after his return to the U.S.

5.  Therefore, in view of the above, there is sufficient evidence upon which to base award of the Purple Heart in this case.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X___  ___X____  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 applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  





      _______ _ 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)                                         AR20080013655



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ABCMR Record of Proceedings (cont)                                         AR20080013655



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