IN THE CASE OF:	  

		BOARD DATE:	        03 FEBRUARY 2009

		DOCKET NUMBER:  AR20080017376 


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, that he be awarded the Purple Heart. 

2.  The applicant states, in effect, that he was blown from a tank during the 
D-Day assault on Normandy during World War II and was sent to the 5th General Hospital in France, then went from England back to France.  He also states that he was blown from a tank a second time and was verbally told and also received a written statement that he would receive the Purple Heart, but that this never happened.  

3.  The applicant provides his WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge), a transcribed version of his 
WD AGO Form 53-55, two pages of information which appear to have been prepared by his son and daughter-in-law, a copy of a photograph, his honorable discharge certificate, and a Standard Form 180 (Request Pertaining to Military Records) in support of this 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 majority of the applicant’s military records are not available for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the majority of the applicant's records were lost or destroyed in that fire.  However, there are sufficient remaining documents available to conduct a fair and impartial review of this case.

3.  The available records show that the applicant was inducted into the Army of the United States on 15 January 1943 and entered active duty on 22 January 1943.  After completing initial entry training, he departed the continental United States on 21 October 1943 for the European-African-Middle Eastern Theater of Operations.  He participated in the Normandy and Northern France campaigns, and returned to the continental United States on 3 January 1946.  He was honorably discharged from active duty on 9 January 1946.  The WD AGO Form 
53-55 that was issued to him at the time of his separation shows that he was awarded the Distinguished Service Medal, the Bronze Star Medal, the Good Conduct Medal, the European-African-Middle Eastern Campaign Medal with bronze arrowhead and two bronze service stars, and the World War II Victory Medal.  The entry for the Distinguished Service Medal possibly was meant to be an entry for the Distinguished Unit Citation, which was subsequently renamed the Presidential Unit Citation.  In the photograph provided by the applicant, he is wearing the Presidential Unit Citation but not the Distinguished Service Medal.

4.  Item 33 (Decorations and Citations) of the applicant’s WD AGO Form 53-55 does not show that he was awarded the Purple Heart.  Item 34 (Wounds Received in Action) of this same document contains the entry "None."  The applicant authenticated this document with his signature in item 56 (Signature of Person Being Separated), attesting to the accuracy of the information contained on this form.  There is no evidence in the available records which shows that he was ever wounded or injured as a result of hostile action.  Information from the hospital admission cards created by the Office of the Surgeon General, Department of the Army essentially shows that he was treated in October 1944 for an abscess and hyperidrosis (excessive perspiration).


5.  The applicant provided two pages of information which appear to have been prepared by his son and daughter-in-law, which stated that the applicant was only 16 years old on D-Day when he was blown out of a tank.  It also stated that the applicant then stripped off all of his clothes to stay afloat better, and that a helicopter came by and a pole was held out to him to grab onto to save himself.  If further states that the applicant was hurt and bleeding all over, and was taken to France, then to England, and then back to France, where he was later blown out of a tank a second time.  Additionally, it stated that the applicant was reported as missing in action, and that he was told that his records were lost.

6.  Army Regulation 600-8-22 (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 military medical personnel, and the medical treatment must have been made a matter of official records.  Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire; the wound or injury must have required treatment by military medical personnel; and the record of medical treatment must have been made a matter of official Army records.

7.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart.

2.  The evidence provided by the applicant was carefully considered.  However, 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.

3.  The sincerity of the applicant's claim to entitlement to award of the Purple Heart is not questioned.  However, absent evidence which proves, by a preponderance of the evidence, that he was wounded or injured as a result of 

hostile action, that he was treated by medical personnel for wounds or injuries that were sustained as a result of hostile action, and that this medical treatment was made a matter of official record, regrettably, there is insufficient basis upon which to award him 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 the United States during World War II.  The applicant and all Americans should be 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)                                         AR20080017376



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ABCMR Record of Proceedings (cont)                                         AR20080017376



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