IN THE CASE OF:	  

		BOARD DATE:	        19 MAY 2009

		DOCKET NUMBER:  AR20080017756 


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 award of the Purple Heart.

2.  The applicant states that he suffered an injury to his right-hand ring finger in the Fall of 1945 while working with prisoners of war (POWs) and that he was advised at the time that he would be put in for the Purple Heart; however, he did not think much of it at the time as he was busy with his duties, in charge of a daily work force of German POWs.  He also states that he sustained a progressive loss of hearing as a result of bombings and traffic control without protective gear and is currently rated at 100 percent service-connected disability for loss of hearing.

3.  The applicant provides a copy of his WD AGO Form 53-55 (Enlisted Record and Report of Separation), dated 7 February 1946; a copy of his Honorable Discharge Certificate, dated 7 February 1946; a copy of Department of Veterans Affairs (DVA) letter, dated 24 March 2008; and a copy of an appeal letter to the DVA, dated 20 September 2005, in support of his 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 applicant’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 applicant’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 applicant's WD AGO Form 53-55 shows he was inducted into the Army of the United States on 6 March 1943 and entered active duty in Buffalo, NY, on 13 March 1943.  This form also shows that at the time of his separation, the applicant held military occupational specialty (MOS) 677 (Military Policeman) and was assigned to Company A, 793rd Military Police Battalion.

4.  The applicant's WD AGO Form 53-55 shows he departed the United States on 2 February 1944 and arrived in the European Theater of Operations (ETO) on 8 February 1944.  He then departed the ETO on 22 January 1946 and arrived back in the United States on 3 February 1946.  He completed 10 months and 23 days of continental service and 2 years and 2 days of foreign service.  He was honorably discharged on 7 February 1946.

5.  Item 32 (Battles and Campaigns) of the applicant’s WD AGO Form 53-55 shows he participated in the Northern France and Rhineland campaigns during World War II.

6.  Item 33 (Decorations and Citations) of the applicant's WD AGO Form 53-55 shows he was awarded the European-African-Middle Eastern Campaign Medal, Good Conduct 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 applicant's WD AGO Form 53-55 contains the entry "None."

8.  The applicant's reconstructed records do not contain general orders awarding him the Purple Heart. 

9.  The applicant submitted a copy of a letter, dated 20 September 2005, appealing a decision by the DVA, in which he stated that:
	a.  his hearing loss started in the service, specifically when he was overseas working traffic control where he was exposed to the constant noise of big trucks passing through, as well as constant bombing attacks.  He also adds he was in close proximity to explosions on five occasions, one of which came within 50 yards of him and knocked him of his feet; and

	b.  he suffered a finger injury while working with German POWs when, one day in the Fall of 1945, he was backing up to the gate and directing the driver, he jumped off the running board and his ring caught on the top of the truck, which almost took his finger off.  He wrapped his hand with a handkerchief and continued on with his mission.  He ultimately had the ring removed from his finger; however, no record of his injury was recorded.  

10.  The applicant submitted a copy of the DVA rating decision letter, which shows he is currently rated at a 100 percent disability for bilateral hearing loss and at zero percent disability for a residual scar to his right ring finger. 

11.  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.

12.  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 medical personnel, and the medical treatment must have been made a matter of official records.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to award of the Purple Heart based on his finger injury and/or hearing loss and the evidence he submitted were carefully considered; however, there is insufficient evidence to award him the Purple Heart in this case.

2.  The applicant's recollection of events that happened over 60 years ago is noted; however, it is insufficient for award of the Purple Heart.  Furthermore, his application to the Department of Veterans Affairs and subsequent rating decision concerning his hearing loss and residual scar to his ring finger is also noted; however, it is again insufficient by itself to show he was wounded or injured as a result of hostile action and treated for such injuries.

3.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria.  The key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that a Soldier was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.

4.  There is no evidence in the applicant's service personnel records which shows that he was wounded or injured as a result of hostile action or treated for such wounds.  The injury to his finger appears to have been an accident nd not caused as a result of hostile action.  Regrettably, absent evidence which conclusively shows that he sustained wounds or injuries as a result of hostile action, and that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is insufficient basis for awarding the Purple Heart to the applicant in this case.

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.



      _________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)                                         AR20080017756



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ABCMR Record of Proceedings (cont)                                         AR20080017756



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