IN THE CASE OF:	  

		BOARD DATE:	        10 February 2009

		DOCKET NUMBER:  AR20080018359 


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

2.  The applicant states that during the Battle of El-Guettar in Tunisia, the FSM was wounded above the eye from a bullet fragment embedded in his forehead.  The wound remained untreated for many days until a French doctor cleaned it and removed the fragments.  However, no record of his treatment by the French doctor was kept.  In addition, there is no record kept about the beating he endured and/or of the FSM's broken nose by civilian police during his recapture after his 2-day escape from a German prisoner of war (POW) camp.

3.  The applicant provides the following additional documentary evidence in support of her application:

	a.  the FSM’s WD AGO Form 53-55 (Enlisted Record and Report of Separation, Honorable Discharge), dated 6 September 1945;

	b.  the FSM's certificate of death, dated 8 October 1998;

	c.  VA Form 10-0048 (Former POW Medical History), dated 15 August 1983; and

	d.  Internet printouts, dated 3 May 2006, showing a photograph of the FSM, and 9 August 2008, of the FSM's memoirs.

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 enlisted in the Regular Army and entered active duty in New York City, New York, on 17 September 1940.  This form also shows that at the time of his separation, the FSM held military occupational specialty 745 (Rifleman) and was assigned to Company K, 18th Infantry.

4.  The FSM's WD AGO Form 53-55 shows he served in the European theater of operations (ETO).  He departed the United States on 2 August 1942 and arrived in the ETO on 7 August 1942.  He then departed the ETO on 26 October 1942 and arrived in the Mediterranean theater of operations (MTO) on 8 November 1942.  He departed the MTO on 3 June 1945 and arrived back in the United States on 12 June 1945.  He completed 2 years, 1 month, and 9 days of continental service and 2 years, 10 months, and 11 days of foreign service.  He was honorably separated on 6 September 1945.

5.  Item 32 (Battles and Campaigns) of the FSM’s WD AGO Form 53-55 shows he participated in the Algeria-French Morocco, Central Europe, and Tunisia  campaigns during World War II (WWII).

6.  Item 33 (Decorations and Citations) of the FSM's WD AGO Form 53-55 shows he was awarded the American Defense Service Medal and the European-African-Middle Eastern Campaign 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 "None."

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

9.  In his VA Form 10-0048, dated 15 August 1983, the FSM describes his injuries during WWII as scattered shrapnel in the face from exploding bullets and a black/bruised eye from falling rocks.  He also indicated that while in captivity as a POW, he was insulted, abused, and beaten by German officers which resulted in a broken nose.

10.  In an internet article, printed on 9 August 2008, the FSM describes his experience during WWII and states that he received shrapnel wounds from exploding bullets the day he was captured and that his wound was subsequently infected.  He was ultimately moved to Tunisia where a French doctor removed the shrapnel from his eye.  He also adds that he suffered a broken nose after he was recaptured by the enemy subsequent to his escape from a POW camp.

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

DISCUSSION AND CONCLUSIONS:

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

2.  The FSM's memoirs or recollection of events that happened over 50 years ago are remarkable; however, they are insufficient for award of the Purple Heart. Furthermore, his application to the Department of Veterans Affairs is noted; however, it is also insufficient by itself to show the FSM was treated for injuries received as a result of hostile action.  

3.  There is no evidence in the FSM's service personnel records which shows that he was wounded or injured as a result of hostile action or treated for such wounds.  Regrettably, absent evidence which conclusively shows that the FSM 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 FSM in this case.

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

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.



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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)                                         AR20080018359



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ABCMR Record of Proceedings (cont)                                         AR20080018359



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