IN THE CASE OF:	  

		BOARD DATE:	  29 January 2009

		DOCKET NUMBER:  AR20080016907 


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 was wounded in action in the Leyte action of World War II.   

3.  The applicant provides his separation document (WD AGO Form 53-55), a self-authored statement, and third-party statements 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 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 record is not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents on file for the Board to conduct a fair and impartial review of this case.  This case is being considered using reconstructed records, which primarily consist of the applicant's WD AGO Form 53-55 and the documents provided by the applicant.  

3.  The applicant's separation document shows that he was inducted into the Army on 12 February 1943 and entered active duty on 19 February 1943.  It also shows that he served in the Pacific Theater of Operations (PTO) from 12 June 1944 to 5 November 1945, and that he participated in the New Guinea, Luzon, and Southern Philippines campaigns of World War II.  

4.  Item 31 (Military Qualifications) of the FSM's separation document shows that he received the Combat Infantryman Badge (CIB).  Item 33 (Decorations and Citations) shows that during his active duty tenure, he earned the American Theater Campaign Medal, Asiatic-Pacific Theater Campaign Medal with 3 bronze service stars, Philippine Liberation Medal, Army Good Conduct Medal, World War II Victory Medal, and 3 Overseas Service Bars.  The PH is not included in the list of awards in Item 33, and Item 34 (Wounds Received in Action) contains the entry "None."

5.  The applicant's WD AGO Form 53-55 also shows that the applicant held the rank of sergeant (SGT) on the date of his separation, and that this was the highest rank he attained while serving on active duty.  It also shows that he was assigned to and served with Company G, 16th Infantry Regiment, and that he was honorably separated on 30 November 1945, after completing a total of
2 years, 9 months, and 19 days of active military service.  

6.  There are no medical treatment or hospitalization records in the available NPRC file that indicate the applicant was ever treated for a combat-related wound or injury while serving on active duty.  

7.  The applicant provides three third-party statements, two from individuals who indicate they served with the applicant and one from the widow of an individual who served with the applicant.  All three statements indicate they remember the applicant being wounded, but none provide a specific eye-witness account of the wounding.  



8.  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 PH.  It states, in pertinent part, that in order to award a PH there must be evidence that a member was wounded or injured as a result of enemy action, that the wound required treatment by military personnel, and a record of this treatment must have been made a matter of official record.  

9.  Paragraph 3-14 of the awards regulation outlines the criteria for award of the Bronze Star Medal (BSM).  Paragraph 3-14d (2) states, in effect, that the BSM is authorized to members of the Armed Forces of the United States who, after
6 December 1941, were cited in orders or awarded a certificate for exemplary conduct in ground combat against an armed enemy between 7 December 1941 and 2 September 1945.  This paragraph also stipulates that for this purpose, an award of the CIB is considered as a citation in orders.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to the PH based on being wounded in action during the Leyte action of 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; that the wound required treatment by military medical personnel; and a record of medical treatment must have been made a matter of official record.

2.  Although all the individuals providing third-party statements indicate they remember the applicant being wounded in action, none of the individuals indicate they personally witnessed the wounding.  Further, Item 34 of the applicant's separation document contains the entry "none," which indicates the applicant was never wounded in action while serving on active duty.  In addition, there are no medical treatment or hospitalization records in the available NPRC file, and the applicant has failed to provide any that show he was ever treated for a combat-related wound or injury while serving on active duty.  As a result, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Therefore, it would be appropriate or serve the interest of all those who served during World War II and who faced similar circumstances to grant the requested relief in this case.

3.  The applicant and all others concerned should know that this action related to award of the PH in no way diminishes the sacrifices the applicant made in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  

4.  The evidence does show that based on his having received the CIB 
during World War II, the applicant is eligible to receive the BSM for his 
exemplary conduct in ground combat against an armed enemy while serving in the PTO from 12 June 1944 to 2 September 1945.  The omission of this award is an administrative matter and does not require Board action.  Therefore, the Case Management Support Division (CMSD), St. Louis, Missouri, will administratively correct his record as outlined in paragraph 2 of the BOARD DETERMINATION/
RECOMMENDATION section below.

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 related to award of the Purple Heart.  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 determined that an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned by awarding him the Bronze Star Medal for his exemplary conduct in ground combat against an armed enemy while serving in the Pacific Theater of Operations from 12 June 1944 to 2 September 1945 and providing him a correction to his separation document that includes this award.



      ________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)                                         AR20080016907



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ABCMR Record of Proceedings (cont)                                         AR20080016907


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