IN THE CASE OF:	  

		BOARD DATE:	       31 March 2009

		DOCKET NUMBER:  AR20090000390 


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 military records to show that he was awarded the Purple Heart for injuries sustained while in action during World War II. 

2.  The applicant states, in effect, that he fell from the ring gun mount atop a 
2 1/2 ton truck during a strafing attack by two German airplanes.  He suffered some minor flesh wounds to his legs and hurt his back.  He could not stand up straight.  He was given medical treatment at the aid station for his flesh wounds and told to lift a case of ammunition each day to work out the problem with his back.  He returned to duty.

3.  The applicant provides, in support of his application, copies of his WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge), WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty or Retirement), a citation for award of the Bronze Star Medal, and six identical statements of support, each from a different former Soldier. 

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.  According to the applicant’s WD AGO Form 53-55:

      a.  On 8 July 1943, the applicant was inducted into the Army of the United States and entered active duty service on 29 July 1943.  

      b.  On 2 July 1944, the applicant departed the United States for service in the European Theater of Operations (ETO).  He served in the ETO from 11 July 1945 to 31 December 1945 and arrived back in the United States on 9 January  1946.
      
      c.  Awards listed on the WD AGO Form 53-55 include the Bronze Star Medal, European-African-Middle Eastern Service Medal, American Service Medal, Good Conduct Medal, and the World War II Victory Medal.  The Purple Heart is not listed.
      
      d.  Item 34 (Wounds Received in Action) of the WD AGO Form 53-55 shows "None."
      
      e.  On 16 January 1946, the applicant was discharged in the rank of corporal.  He had completed 1 year, 11 months and 10 days of creditable active duty service.

4.  The citation provided by the applicant indicates that he was awarded the Bronze Star Medal for meritorious service during the period from 19 August 1944 to 12 February 1945, while serving as an ammunition handler and hauler in France and Luxembourg under trying combat conditions.  The citation does not indicate that he was ever wounded or injured while performing these duties.



5.  The WD AGO Form 38 provided by the applicant indicates that the applicant suffered pain on standing or walking.  There is no indication on the form that he had been wounded in action or had received any medical treatment for any wound or injury.

6.  The applicant's medical records are not available for review.  A letter, dated 12 September 1994, from the Chief, Veterans Services Directorate, United States Army Reserve Personnel Center, written to the applicant's congressional representative at the time, stated that his medical records failed to show that he had been hospitalized for wounds received in action.

7.  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 a medical officer, and the medical treatment must have been made a matter of official record.

8.  The six letters of support provided by the applicant essentially state that the applicant was on top of a 2 1/2 ton truck retrieving a 5--caliber machine gun.   He was being shot at while attempting to move the gun.  He subsequently dropped the gun on his foot, fell off the truck, and rolled under the truck for protection from gun fire.  The authors further started that they were aware that the Department of Veterans Affairs (VA) had granted the applicant a service-connected disability for this combat wound. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was wounded in action, received medical treatment and should be awarded a Purple Heart.

2.  There is no available evidence of record corroborating the applicant's contention that he sustained a wound while in action or that he received medical treatment for such a wound. 

3.  While the letters of support clearly state that the applicant injured his foot during an enemy attack, they do not provide any evidence of medical treatment.

4.  In view of the above, the applicant's request should be denied.




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.




      _______ _   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)                                         AR20090000390





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ABCMR Record of Proceedings (cont)                                         AR20090000390



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