IN THE CASE OF:
BOARD DATE: 22 January 2009
DOCKET NUMBER: AR20080015390
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, award of the Purple Heart (PH).
2. The applicant states, in effect, he should be awarded the PH for injuries he received in combat during World War II. He claims that sometime in April 1945, in Germany, he was hit in the left hip with shrapnel and sustained a cut to the trigger finger on his right hand. He claims he was treated for these wounds in the field and returned to duty.
3. The applicant provides a self-authored statement, an affidavit, and copies of his military service record in support of his 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 applicants 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 applicants 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 record shows that he was inducted into the Army and entered active duty on 1 February 1943. It also shows he served in the European Theater of Operations from 23 August 1944 through 9 August 1945. His record also shows that private first class was the highest rank he attained while serving on active duty.
3. The applicant's record contains a WD AGO Form 33 (Report of Physical Examination), dated 2 November 1945, which documents the applicant's separation medical examination. This document contains the entry "None" in Item 11 (List significant diseases, wounds, and injuries. State circumstances under which wounds or injuries were incurred and date of onset) and provides no indication that the applicant was ever wounded or injured as a result of enemy action. The record does include a medical treatment record showing he was treated for a finger injury; however, the medical treatment record gives no indication that this injury was combat related. There are no medical treatment records on file that indicate the applicant was ever treated for a combat related wound or injury he received as a result of enemy action.
4. On 3 November 1945, the applicant was honorably separated after completing 2 years, 9 months, and 3 days of active military service. The separation document (WD AGO Form 53-55) he was issued upon his separation shows he earned the European-African-Middle Eastern Campaign Medal, Army Good Conduct Medal, and World War II Victory Medal during his tenure on active duty. The separation document is void of an entry indicating that he was ever wounded in action and the applicant authenticated this document with his signature on the date of his separation.
5. Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy. Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH. It states, in pertinent part, that 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; that the wound required treatment by military 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 have been awarded the PH for injuries he received in combat during World War II was carefully considered. However, 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.
2. The evidence in this case fails to show the applicant was ever wounded as a result of enemy action. The medical treatment record documenting his treatment for a finger injury fails to indicate this injury was sustained as a result of enemy action. There are no medical treatment records on file that show he was ever treated for a combat related wound or injury, and the WD AGO Form 33 documenting his separation medical examination fails to identify any combat related wounds or injuries. Further, there is no entry on his separation document related to wounds received as a result of enemy action. As a result, absent any evidence of record corroborating the applicant's claim that he was wounded in action, the regulatory burden of proof necessary to support award of the PH has not been satisfied 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 he made 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) AR20080015390
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ABCMR Record of Proceedings (cont) AR20080015390
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