IN THE CASE OF:	  

		BOARD DATE:	        3 February 2009

		DOCKET NUMBER:  AR20080014461 


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 that her deceased husband, a former service member (FSM), be awarded the Purple Heart.

2.  The applicant states, in effect, that the FSM was wounded in action during his service in World War II (WWII).

3.  The applicant provides the following additional documentary evidence in support of her application:

	a.  the FSM’s WD AGO Form 53-55 (Enlisted Record and Report of Separation, Honorable Discharge), dated 12 November 1945;

	b.  the FSM's certificate of death, dated 17 July 2007;

	c.  certificate of marriage, dated 9 June 1951;

	d.  witness letter, dated 13 January 2002, from a former unit member; and

	e.  operational history sheet of the 438th Signal Heavy Construction Battalion from April 1943 to December 1944.

CONSIDERATION OF EVIDENCE:

1.  The FSM’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 in 1973.  It is believed that the FSM’s 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.

2.  The FSM's WD AGO Form 53-55 shows he was inducted into the Army of the United States on 30 July 1942 and entered active duty at Camp Perry, Ohio, on 13 August 1942.  This form also shows that at the time of his separation, the FSM held military occupational specialty 238 (Telephone Lineman) and was assigned to Company B, 438th Signal Heavy Construction Battalion.

3.  The FSM's WD AGO Form 53-55 shows he served in the European theater of operations.  He departed the United States on 7 April 1943 and arrived in England on 17 April 1943 and then departed Europe on 29 October 1945 and arrived back in the United States on 6 November 1945.  He completed 8 months of continental service and 2 years and 7 months of foreign service.  He was honorably separated on 12 November 1945.

4.  Item 31 (Military Qualification and Date) of the FSM’s WD AGO Form 53-55 shows he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar.

5.  Item 32 (Battles and Campaigns) of the FSM’s WD AGO Form 53-55 shows he participated in the Normandy, Northern France, Rhineland, Ardennes, and Central Europe campaigns during WWII.

6.  Item 33 (Decorations and Citations) of the FSM's WD AGO Form 53-55 shows he was awarded the Good Conduct Medal, the American Campaign Medal, the European-African-Middle Eastern Campaign Medal with five bronze service stars, and the WWII Victory Medal.  Item 33 does not show award of the Purple Heart.

7.  Item 34 (Wounds Received in Action) of the FSM's WD AGO Form 53-55 contains the entry "None."

8.  The FSM's reconstructed records do not contain general orders awarding him the Purple Heart.

9.  In a statement, dated 13 January 2002, a former unit member states that he was a witness on the site in late 1944 in Germany as a member of Company A and working with Company B putting up telephone lines and poles for military communications.  He states that members of the pole line construction crew were working in a ravine tying wires that were tied temporarily for security/safety reasons before tying the wires to the insulators because above that pole was a 1500 volt power line.  The lineman on that pole untied the ten wires that were under tension at that time, causing them to go up into the power lines.  The FSM was the one tying the telephone wires on the cross arms when he [the witness] heard a scream ahead of him as he came down the pole.  He looked down and saw the FSM and another Soldier on the pole.  The FSM’s hands were stuck to the wires burning and smoking and his head was also touching wires and smoking.  The other Soldier was not severely burned.  He [the witness] waited until other Soldiers threw a rope over the telephone wire that was touching the hot wire.  Once it was safe, he climbed up and removed the other Soldier first and then the FSM.  He and other Soldiers moved the FSM to the bed of a truck where he [the witness] noticed there were several holes the size of a half-dollar in his back.  He adds that there were a total of six Soldiers injured in that incident and that the Soldiers were subsequently moved to a field hospital for treatment.  He concludes that the mistake was that the pole in the ravine was under a power line and was only tied temporarily with rope.  Until the two Soldiers tied the wires down permanently on this pole, they should not have released the safety rope until all ten wires were tied permanently.

10.  The applicant submitted copies of the 438th Signal Battalion’s operational history (an After Action Review) that show on 22 June 1945, members of the unit underwent a serious incident and specifically mentions the FSM and two other Soldiers by name as having been injured while constructing an open wire line north of Munich, Germany, when one of the wires became entangled with a high voltage power line and caused six Soldiers to suffer severe electrical shocks and burns.  The report further shows that the Soldiers were recovering well and that the incident was not due to negligence.

11.  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 Number 3 in 1932.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national 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, died or sustained wounds as a result of hostile action.

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have been treated by military medical personnel, and the medical treatment must have been made a matter of official records.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM should be awarded the Purple Heart.

2.  The witness statement and operational reports submitted by the applicant were carefully considered.  Furthermore, the FSM’s injury while installing phone lines in Germany on 22 June 1945 is not in question.  The witness states that the FSM was injured in a construction incident in late 1944 while the historical report indicates the incident occurred on 22 June 1945.  If the accuracy of the historical report is relied upon, the incident occurred after the official hostilities between the United States and Germany ended in May 1945.  Further, neither the witness statement nor the operational report conclusively shows that the FSM or other Soldiers were fired upon by the enemy while installing phone lines and there is no clear indication that the alleged holes that the witness saw on the FSM’s back originated from or were caused by enemy action.

3.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration, rather he or she is entitled to it upon meeting specific criteria.  When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.  Enemy-related injuries which justify the award of the Purple Heart include injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed land mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and concussion injuries caused as a result of enemy generated explosions.  Injuries or wounds which do not qualify for award of the Purple Heart include accidents such as explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; and/or self-inflicted wounds.

4.  There are no general orders that show the FSM was awarded the Purple Heart.  There is no evidence in his service personnel records which shows that he was wounded or injured as a result of hostile action or treated for such wounds.  While the FSM's injury is unfortunate, regrettably, absent evidence which conclusively shows that the FSM sustained wounds or injuries as a result of hostile action, and that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is insufficient basis for awarding the Purple Heart to the FSM in this case.


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.


																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.

ABCMR Record of Proceedings (cont)                                         AR20080014461



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ABCMR Record of Proceedings (cont)                                         AR20080014461



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