IN THE CASE OF:	  

		BOARD DATE:	  23 April 2009

		DOCKET NUMBER:  AR20080019925 


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 he be awarded the Purple Heart.

2.  The applicant states that he was wounded in combat in World War II (WWII) and was taken to a hospital in Lyon, France.  He goes on to state that he was told that he would receive the Purple Heart.  He also states that he was examined by three doctors and was given a 30-percent disability rating that was later reduced to 10 percent.  He also states that he was in Company G, 276th Infantry Regiment, 70th Infantry Division, and after he left the hospital, he was sent to a quartermaster unit in France where he remained until he was sent home.

3.  The applicant provides two pages of explanation 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 was born on 11 December 1923 and was inducted into the Army of the United States on 8 February 1943.  He entered active duty on 15 February 1943 at Fort Thomas, Kentucky.  He completed his training and was assigned to Company G, 276th Infantry Regiment, 70th Infantry Division.

4.  His regiment was moved to Camp Miles Standish outside of Boston and on 6 December 1944, he departed on the SS West Point for the European theater of operations (ETO).

5.  He participated in the Rhineland and Central Europe campaigns and was promoted to the rank of technician fifth grade (TEC5).  He departed the ETO on 7 March 1946 and arrived at Camp Kilmer, New Jersey, on 16 March 1946.  He was transferred to Camp Atterbury, Indiana, where he was honorably discharged on 21 March 1946 due to the convenience of the government and demobilization.

6.  The WD AGO Form 53-55 (Record and Report of Separation - Honorable Discharge) issued to the applicant at the time of his discharge reflects in block 34 under "Wounds Received in Action" the entry "None."  The applicant authenticated that form with his signature and right thumb print.

7.  A review of the available records fails to show any evidence that the applicant was wounded as a result of enemy action or that treatment for any such wounds/injuries was made a matter of record.

8.  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 by medical personnel, and the medical treatment must have been made a matter of official record.



DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant's claim that he was wounded in action in WWII is not in doubt, unfortunately, there is no indication in the available records to show that he was in fact wounded/injured and that the treatment for such wounds/injuries was made a matter of record.

2.  The loss of the applicant's records in the 1973 fire at the National Personnel Records Center couple with the passage of time (62 years) makes it difficult at best to determine what actually happened in the applicant's case.

3.  Therefore, in the absence of evidence to show that he was wounded/injured as a result of enemy action and that the treatment was made a matter of record, the Board must presume that what the Army did at the time was correct.  Accordingly, absent such evidence there appears to be no basis to award him the Purple Heart at this time.

4.  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.  

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 WWII.  The applicant and all Americans should be justifiably proud of his service in arms.



      ___________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)                                         AR20080019925



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ABCMR Record of Proceedings (cont)                                         AR20080019925



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