IN THE CASE OF:	  

		BOARD DATE:	       21 January 2009

		DOCKET NUMBER:  AR20080015212 


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 assigned to an ammunition and pioneer platoon with Headquarters Company, 2nd Battalion, 22nd Infantry, from 5 July 1944 to 27 October 1945.  He indicates that on one occasion his unit had stopped to get replacements and were in an artillery area where there were a lot of dead German Soldiers laying around an anti tank gun.  He states that he had instructed his men to stay clear of the area due to booby traps and mines; however, they did not listen to his warnings and a bomb went off burning him severely on his face.  He was transported to field hospital, treated, and sent back to his unit.

3.  The applicant provides a letter, dated 5 June 2007, from a Member of Congress; a letter, dated 2 May 2007, from the Military Awards Branch, U.S. Army Human Resources Command, to a Member of Congress; an excerpt pertaining to the Purple Heart from Army Regulation 600-8-22 (Military Awards); a letter, dated 21 November 2007, from the U.S. Army and Joint Services Records Research Center, Alexandria, Virginia; a historical document of the 22nd Infantry Regiment during the period 1 January 1944 to 1 January 1946; a copy of his WD AGO Form 53-55 (Enlisted Record and Report of Separation); a 

DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty); a WD AGO Form 100 (Separation Qualification Record); and two Morning Reports.

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 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 applicant’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.

3.  The applicant was inducted into the Army of the United States on 5 July 1944. He served in the European theater of operations from 14 January 1945 through 3 July 1945 and was honorably discharged on 27 October 1945.

4.  The applicant’s WD AGO Form 53-55 does not show the Purple Heart as an authorized award.  Item 34 (Wounds Received in Action) on his WD AGO Form 53-55 shows the entry, "None."

5.  There is no evidence in the available records that shows the applicant was awarded the Purple Heart or was wounded as a result of hostile action during World War II.

6.  The Office of the Surgeon General Hospital List shows the applicant was hospitalized on 27 February 1945 in the European theater of operations for a non-battle injury (burn to the face).


7.  In support of his claim, the applicant provided two Morning Reports, dated March 1945, which indicate that he was absent from duty for a non-battle casualty.  He also provided a unit history of the 22nd Infantry Regiment during the period 1 January 1944 to 1 January 1946.  However, this document does not show that he was injured as the result of hostile action.

8.  Army Regulation 600-8-22 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 required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

Medical evidence of record shows the applicant was hospitalized for a non-battle injury (burn to the face) in the European theater of operations on 27 February 1945.  The Morning Reports provided by the applicant also show that he was absent from duty for a non-battle injury.  There is no evidence in the available records that shows the applicant was awarded the Purple Heart or was wounded as a result of hostile action during World War II.  Regrettably, there is insufficient evidence on 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.


      
      _________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)                                         AR20080015212



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ABCMR Record of Proceedings (cont)                                         AR20080015212



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