IN THE CASE OF:	  

		BOARD DATE:	        29 January 2009

		DOCKET NUMBER:  AR20080016463 


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

2.  The applicant states that her uncle sustained wounds to his leg and head in Italy in November 1943 during his service in World War II (WWII).

3.  The applicant provides a copy of the FSM's WD AGO Form 53-55 (Enlisted Record and Report of Separation), dated 8 December 1945; a self-authored letter, dated 31 January 2008; a funeral home final bill, dated 11 November 2006, regarding the FSM's death; and a copy of the FSM's certificate of death, dated 10 November 2006, in support of her application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the FSM be awarded the Purple Heart.

2.  Counsel states that the FSM spoke to his niece about shrapnel wounds to his legs and head; however, his WD AGO Form 53-55 does not show that he was wounded in action. 

3.  Counsel did not provide any additional documentary evidence in support of the applicant's request.


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 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.

3.  The FSM’s WD AGO Form 53-55 shows he was inducted in the Army of the United States at Louisville, Kentucky, on 12 June 1942.  This form also shows that he held military occupational specialty (MOS) 356 (Foreman Labor) and was, at the time of his discharge, assigned to Headquarters Company, 845th Signal Service Company.

4.  The FSM's WD AGO Form 53-55 shows he departed the United States on
8 February 1943 and arrived in the European-African-Middle Eastern (EAME) Theater on 21 February 1943.  His date of departure from the EAME Theater is unknown, but he arrived in the United States on 20 November 1945.  The form shows he completed 8 months and 14 days of continental service and 2 years, 9 months, and 13 days of foreign service.  He was honorably discharged on 8 December 1945.

5.  Item 32 (Battles and Campaigns) of the FSM’s WD AGO Form 53-55 shows the entry "None." 


6.  Item 33 (Decorations and Citations) of the FSM's WD AGO Form 53-55 shows he was awarded the Good Conduct Medal, the European-African-Middle Eastern Campaign Medal, and the World War II 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 "Not Available."

8.  There are no general orders awarding the FSM the Purple Heart. 

9.  The applicant submitted a self-authored statement, dated 31 January 2008, in which she states the FSM was wounded in Italy around November or December 1943 by pieces of flying shrapnel that hit both his legs and his head, and this should qualify him for award of the Purple Heart. 

10.  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.

11.  Army Regulation 672-5-1 (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 medical personnel, and the medical treatment must have been made a matter of official records.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her uncle, the FSM, is entitled to award of the Purple Heart. 

2.  This is an unfortunate case.  There are no records available to the Board which would provide justification for awarding the FSM the Purple Heart.  Without service records or general orders that show the FSM was awarded the Purple Heart, there is no way the Board can grant the applicant’s request. 


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 FSM in service to our Nation during WWII.  The applicant and all Americans should be justifiably proud of the FSM’s service in arms.  


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      _______ _   _______   ___
               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)                                         AR20080016463



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ABCMR Record of Proceedings (cont)                                         AR20080016463



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