IN THE CASE OF:	  

		BOARD DATE:	        5 March 2009

		DOCKET NUMBER:  AR20080018450 


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 correction of his records to show award of the Purple Heart. 

2.  The applicant states that he was wounded by an enemy grenade fragment to his eyebrow during the landing at Luzon, Philippines.  He further states that he was treated for his wounds at the 54th General Hospital, New Guinea.

3.  The applicant provides his WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge) for the period ending 25 September 1945; a WD AGO Form 100 (Separation Qualification Record), dated 25 September 
1945; an Honorable Discharge Certificate, dated 25 September 1945; and a letter addressed to the Director of Insurance, Veterans Administration (VA), dated 4 March 1946.

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, this case is being considered using reconstructed records, which primarily consist of his WD AGO Form 53-55 and WD AGO Form 40 (Certificate of Disability for Discharge), dated 25 September 
1945.

3.  The applicant's WD AGO Form 53-55 for the period ending 25 September 
1945 shows he was inducted into the Army of the United States on 13 January 
1943 and entered active duty on 20 January 1943.  On 25 August 1944, he departed the United States for duty in the Asiatic Pacific theater of operations.  He arrived in the Asiatic Pacific theater of operations on 12 September 1944.

4.  The applicant departed the Asiatic Pacific theater of operations on 14 June 1945.  He was honorably discharged with a certificate of disability on 25 September 1945

5.  Item 33 (Decorations and Citations) of the applicant's WD AGO Form 53-55 shows the applicant was awarded the Asiatic-Pacific Theater Campaign Medal.  Item 34 (Wounds Received in Action) contains the entry "Not available."

6.  The applicant's WD AGO Form 40 for the period ending 25 September 1945 shows he went before a medical board and was found unfit for military service due to "anxiety, hysteria, chronic, moderate, incapacitated by nervousness, hyperhidrosis, tremors, pressure in the head, tinnitus, and preoccupation over bodily complaints, aggravated by severe stress, 2-3 months combat duty as artillery man in Philippine Islands in markedly predisposed individual.  Severe functional impairment."

7.  There are no general orders in the applicant's records that show he was awarded the Purple Heart.

8.  The applicant provided a self-authored letter addressed to the VA Director of Insurance, dated 4 March 1946.  The applicant stated that he believed that he was entitled to a premium waiver from 6 March 1945 through 30 September 
1945.  The applicant indicated that he was hospitalized at seven different hospitals from 9 March 1945 through 25 September 1945.  The document shows he was admitted to the 54th General Hospital, New Guinea, from 13 April 1945 through 6 May 1945.
9.  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 required treatment, and the medical treatment must have been made a matter of official record.  When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.

DISCUSSION AND CONCLUSIONS:

1.  There are no orders in the applicant's service personnel records that show he was awarded the Purple Heart.  There is no evidence in the available records and the applicant has not provided evidence, such as eyewitness accounts from his chain of command at the time or medical personnel who treated his wounds, that shows the applicant was wounded or treated for wounds as a result of hostile action.

2.  Regrettably, in the absence of military records which show the applicant was wounded or treated for wounds as a result of hostile action, the letter he provided is insufficient basis for award of 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:

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)                                         AR20080018450



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ABCMR Record of Proceedings (cont)                                         AR20080018450



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