IN THE CASE OF:	  

	BOARD DATE:	  3 February 2009

	DOCKET NUMBER:  AR20080015811


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 to her brother, a former service member (FSM).
 
2.  The applicant states, in effect, she was 14 years old when her brother returned from World War II and she remembers he told family members that he was stabbed by a Japanese Soldier during the nighttime.  The applicant also invites the Board’s attention to Army Regulation 600-45 (Decorations).

3.  The applicant provides no additional documentary evidence in support of her application.  However, the applicant does provide a Colorado Statutory Power of Attorney for Property, dated 28 December 2006, that shows she was appointed by the FSM to act for him in any lawful way with respect to, in pertinent part, claims and litigation.

CONSIDERATION OF EVIDENCE:

1.  The FSM's military service 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 available military service records contain a WD AGO Form
53-55 (Enlisted Record and Report of Separation - Honorable Discharge).  This document shows that the FSM enlisted and entered active duty in the Regular Army on 3 October 1940.  Item 6 (Organization) shows the FSM was assigned to 1040th Army Air Forces Base Unit and Item 30 (Military Occupational Specialty [MOS] and Number) shows the FSM held MOS 059 (Foreman, Construction). Item 36 (Service Outside Continental U.S. [United States] and Return) shows the FSM departed the U.S. for the Theater of Hawaii on 3 August 1941, arrived in the Theater of Hawaii on 8 August 1941, departed the Theater of Hawaii on  10 May 1945, and returned to the U.S. on 10 June 1945.  Item 32 (Battles and Campaigns) shows he participated in the Central Pacific and Western Pacific campaigns.  Item 33 (Decorations and Citations) shows the FSM was awarded the Good Conduct Medal, Asiatic-Pacific Campaign Medal with 2 bronze service stars, and American Defense Service Medal with 1 bronze service star.  Item 34 (Wounds Received In Action) contains the entry "None."  This document also shows that the FSM was honorably discharged on 2 September 1945 after completing 3 years, 10 months, and 7 days of foreign service and 1 year and 23 days of continental service.

3.  The FSM’s available military service records contain a copy of a Form 52b (Medical Department, U.S.A.), dated 30 November 1943, that shows the FSM was diagnosed with a neck injury.  The "Changed and additional diagnoses, operations, with dates" section of the form, in pertinent part, contains the entry "[w]ound, lacerated, left side neck below mastoid process, about 5 cm [centimeters] in length, incurred while adjusting a search light with previously broken lens which fell [and] cut him, APO [Army Postal Office] 459, 30 Nov 43."  The Supplemental Record (Page 303), Final Diagnosis portion of the form contains the entry "[w]ound, lacerated, left side of neck below mastoid process about 5 cm in length.  Accidentally incurred."

4.  There are no orders in the FSM’s available military service records that show he was awarded the Purple Heart.  There also is no evidence in the FSM’s records that show he was wounded or treated for wounds as a result of hostile action.

5.  The FSM’s available military service records contain a copy of a Veterans Administration (VA) Form 2545 (Report of Physical Examination) that documents the FSM’s out-patient examination for pension conducted on 25 April 1947.  Item 7 (Origin and date of incurrence of disability as alleged by claimant:), in pertinent part, contains the entry "November 1943 - while flying on a mission in the Gilbert Islands, sustained injury to sub-occipital region of neck, (left side), when another plane exploded beneath him, and he was hit by flying fragments of glass.  (Was Gunner on a B-25)."
6.  Army Regulation 600-45 (Decorations), which governed the award of Army decorations until 23 August 1951, 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.

7.  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 Purple Heart.  It states, in pertinent part, that the Purple Heart is awarded to any member who has been wounded or killed in action.  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.  In order to support awarding a member the Purple Heart, it is necessary to establish that the wound for which the award is being made required treatment by medical personnel, and the medical treatment for the wound or injury received in action must have been made a matter of official record.  This document also provides examples of injuries or wounds which clearly do not justify award of the Purple Heart and specifically cites, in pertinent part, accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the records of her brother, a FSM, should be corrected to show award of the Purple Heart because he was wounded or injured during World War II.

2.  There is no evidence of record, and the applicant provides insufficient evidence, to show that the FSM was stabbed by a Japanese Soldier during World War II.

3.  The sincerity and authenticity of the applicant’s comments in her writings are not in question.  However, based on the available evidence, there is insufficient evidence upon which to base award of the Purple Heart to the FSM in this instance.

4.  Records show that subsequent to the FSM’s discharge from the Army and during an out-patient physical examination of the FSM by the VA on 25 April 1947, the FSM indicated he sustained an injury to the left side of his neck while flying on a mission in the Gilbert Islands in November 1943, when another plane exploded beneath him and he was hit by flying fragments of glass.  The FSM’s VA claim is not in question.  However, this document, prepared more than three years after the alleged incident and subsequent to the FSM’s discharge from the Army, provides insufficient evidence to support a claim for the Purple Heart.

5.  The Army regulatory guidance governing the criteria for award of the Purple Heart is clear in that the wound for which the award is made must have been sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy, the wound must have required treatment by medical personnel, and record of the medical treatment for the wound or injury sustained in action must have been made a matter of official record.

6.  There is no evidence the FSM was awarded the Purple Heart.  While there is evidence that the FSM was treated for an injury to his neck on 30 November 1943, there is no documentary evidence in the FSM's military service records that supports the contention that the FSM sustained the injury as a result of hostile action (emphasis added).  In fact, the evidence of record, in the form of Army medical records, shows the FSM’s neck injury was accidentally incurred (emphasis added) while he was adjusting a search light that had a broken lens which fell and cut him.  Therefore, in view of all of the foregoing, there is no basis for correcting the FSM’s military service records to show award of the Purple Heart in this case.

7.  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.

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)                                         AR20080004974



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ABCMR Record of Proceedings (cont)                                         AR20080015811



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