IN THE CASE OF:	  

		BOARD DATE:	  13 November 2008

		DOCKET NUMBER:  AR20080013763 


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.  Through a Member of Congress (MOC) and in two separate applications, the applicant requests, in effect, award of the Purple Heart (PH).

2.  The applicant states, in effect, that he sustained a shrapnel wound to his right knee as a result of enemy fire while serving in France in 1944.

3.  The applicant provides the following documents in support of his application: Veteran Services Letter; Self-Authored Statement; Compensation and Pension Exam Report (VA Form 2507); Separation Document (WD AGO Form 53-55); Morning Reports (1-4 August 1944); and Department of Veterans Affairs (VA) Rating Decision, dated 5 May 2004.

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 complete 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.  The applicant’s records were lost and/or partially destroyed in that fire.  This case is being considered using a reconstructed file from NPRC.

3.  The applicant’s WD AGO Form 53-55 shows he was inducted into the Army of the United States on 19 March 1943 and entered active duty on 26 March 1943.  It also shows he held military occupational specialty (MOS) 745 (Rifleman) and that he served in the European Theater of Operations (ETO) from 18 October 1943 to 2 December 1945.  It further indicates that he was credited with participating in the Northern France, Rhineland, and Central Europe campaigns of World War II.

4.  Item 31 (Military Qualification and Date) of the applicant’s WD AGO 
Form 53-55 shows he earned the 1st Class Gunner Badge, Combat Infantryman Badge, and Marksman Marksmanship Qualification Badge with Rifle Bar.  Item 33 (Decorations and Citations) shows that during his active duty tenure he earned the Army Good Conduct Medal, World War II Victory Medal, and European-African-Middle Eastern (EAME) Campaign Medal.  The PH is not included in the list of awards contained in Item 33 and Item 34 (Wounds Received in Action) contains the entry “None.”  The applicant authenticated the separation document with his signature in Item 56 (Signature of Person Being Separated) on the date of his separation, which was 28 December 1945.

5.  The applicant's reconstructed NPRC file also contains Morning Reports from the applicant’s unit (Company B, 110th Infantry Regiment) for the period 
1 through 4 August 1944.  There is an entry on the 1 August report that indicates the applicant’s duty status changed from present for duty to absent sick 
(non-battle) and on the 4 August report that indicates he went from absent sick at 103rd Medical Battalion to transferred to 41st Evacuation Hospital (non-battle) as of 2 August 1944.

6.  There are no documents in the reconstructed file that indicate the applicant was ever recommended for or awarded the PH by proper authority while serving on active duty.

7.  The applicant provides a VA Rating Decision, dated 5 May 2004, which shows he was granted service-connection for shrapnel wounds lateral aspect, right knee with a zero percent disability rating.


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 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 for a shrapnel wound to his right knee has been carefully considered.  However, by regulation, in order to support award of the PH, it is necessary to establish that the wound for which the award is being made was received as a direct result of, or was caused by enemy action.

2.  Although showing the applicant was hospitalized for a non-battle related illness, the evidence fails to confirm the applicant’s shrapnel wound was received as a result of enemy action.  There is also no evidence showing that the applicant was ever wounded in action while serving during WWII, and there are no orders or other documents on file that show he was ever recommended for or awarded the PH by proper authority while serving on active duty.  The NPRC file is also void of any medical treatment records confirming the applicant was ever treated for a combat-related wound or injury during his active duty tenure. 

3.  Further, the PH is not included in the list of awards contained in Item 33 of the applicant’s WD AGO Form 53-55 and Item 34 contains the entry “None,” which indicates he was never wounded as a result of enemy action.  The applicant authenticated the WD AGO Form 53-55 with his signature on the date of his separation.  In effect, his signature was his verification that the information contained on the separation document, to include the Item 33 and Item 34 entries, was correct at the time the WD AGO Form 53-55 was prepared and issued.  Therefore, absent any evidence that the shrapnel wound that is now categorized as service-connected by the VA was received as a result of enemy action, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  As a result it would not be appropriate or serve the interest of all those who served during World War II and who faced similar circumstances to award the PH at this late date.  

4.  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 related to award of the PH.  


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)                                         AR20080013763



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ABCMR Record of Proceedings (cont)                                         AR20080013763


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