IN THE CASE OF: 

		BOARD DATE:	  2 June 2009

		DOCKET NUMBER:  AR20090000431 


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 an update/correction to item 33 (Decorations and Citations) of his WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge).

2.  The applicant states that a review of his discharge does not include all of the decorations to which he is entitled.  He states that it is his belief that he is entitled to a Purple Heart due to an injury that he received when an enemy land mine exploded.  He states that his injuries have been confirmed by the Department of Veterans Affairs (VA).

3.  The applicant provides a copy of his Rating Decision, dated 22 December 2008; a copy of his VA decision letter regarding his award amount and payment start date, dated 24 December 2008; a copy of a letter addressed to him from the VA reminding him of a clinic appointment, dated 25 September 2008; Medical Record Progress Notes, dated 23 September 2008; two self-authored letters describing the events that he contends occurred in late April 1945 which qualify him for award of the Purple Heart, undated; and two copies of a letter addressed to the Army Review Boards Agency Support Division from a Veterans Services Officer forwarding his application and supporting documents for consideration, dated 8 January 2009.

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 are sufficient documents remaining in a reconstructed record and documents that have been submitted by the applicant for the Board to conduct a fair and impartial review of this case.

3.  On 13 September 1943, the applicant was inducted into the Army of the United States in Sacramento, California, and entered active duty on 4 October 1943.  He successfully completed his training as a light truck driver.

4.  After completing 2 years, 4 months, and 26 days of total active service, the applicant was honorably discharged on 8 February 1946 under the provisions of Army Regulation 615-365 (Enlisted Personnel Discharge Convenience of the Government) for the convenience of the government due to demobilization.

5.  The WD AGO Form 53-55 that he was furnished at the time of his discharge shows that he was awarded the World War II Victory Medal, the European-African-Middle Eastern Campaign Medal, and the Army Good Conduct Medal with clasp.  His WD AGO Form 53-55 also shows that he was qualified for the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-1) and that he was issued the Honorable Service Lapel Button, World War II.

6.  A review of his WD AGO Form 53-55 shows that he received no wounds in action while he was in the Army.  In a VA Preliminary Application to Establish Eligibility dated 22 March 1951, the applicant was requested to indicate if he had been wounded, if he was disabled, or if an application had been made for Federal compensation.  The applicant responded by answering no.

7.  In response to an inquiry from the applicant, the National Personnel Records Center informed the applicant on 18 August 2006 that he was entitled to the Army Good Conduct Medal (second award); the European-African-Middle eastern Campaign Medal with two bronze service stars; the World War II Victory Medal; the Honorable Service Lapel Button, World War II; and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  The applicant was provided an awards case number and he was told his awards would be shipped directly to him from the United States Army Tank-Automotive and Armaments Command.  All of these awards, except the two bronze service stars, are currently reflected on his WD AGO Form 53-55.

8.  The VA Rating Decision, dated 22 December 2008, shows that the applicant was awarded a 10-percent service-connected disability rating effective 8 November 2004 for residuals of a head injury to include headaches and a 
10-percent service-connected disability rating for fifth cranial nerve damage with left side facial numbness due to a head injury effective 8 November 2004.  A diagnosis of post-traumatic headaches and left facial numbness was provided by the VA and the examiner that reviewed his claim opined that it was as least as likely as not that his headaches and left facial numbness are the result of the injuries that he received while he was on active duty.

9.  The Medical Record Progress Notes that the applicant submitted in support of his application shows he reported that he "was leading a 12-man squad combat team and nearing a friendly tank when an explosion sent him up in the air and backwards, landing on his feet according to his buddies in May 1945."  There were no shrapnel injuries but he was nearly deaf and he had no memory for approximately 1 week.  The VA determined that his current headaches and left facial numbness were at least as likely as not (50-percent probability) caused by or a result of the explosion and blunt trauma injuries which occurred on the front lines without any medical attention possible and that the explosion and head trauma occurred in May 1945.

10.  According to one of the undated statements that he submitted in support of his application in April 1946, his task force was proceeding through fields and narrow dirt roads.  He states that the squad in his halftrack was near the head of the column behind some tanks and a platoon of infantry Soldiers in three halftracks.  He states that the column came to a sudden stop and an officer hurried back to tell them that they were needed back towards the rear, as some tanks crossing an open plowed field had encountered a German minefield.  He states that they were ordered to get there as fast as they could and that a narrow road prevented them from turning their vehicles around.  He states that they dismounted and headed out to locate the tanks that were in trouble.  He states that he saw a tank in a plowed field and when he reached the tank it began to move and a terrible explosion lifted the tank.  He states he only remembers that he was in the air and he was told by his buddy that he did a complete summersault and landed on his feet.  He states that he was weak, shaken and could not hear as his head and ears were hurting.  He states that he was conscious but out of reality and that he did not report the incident to the medic because there was no sign of bleeding nor was there an open wound.  He states that his head and ears slowly began to feel better.  He states that in June 1945, he developed very severe headaches and his company medic sent him by ambulance to the division hospital in Aalen, Germany.

11.  In the second undated statement that the applicant submitted, he states that he was riding in the back of a halftrack when a hanging limb from a tree caught a .50 caliber machine gun that was mounted on a turret ring causing it to rotate rapidly and the barrel hit him on the head knocking him across the halftrack.  He states that his steel helmet saved his life and, although he was weak and shaken, he did not mention the incident to a medic.

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

13.  Army Regulation 600-8-22 also authorizes a bronze service star based on qualifying service for each campaign listed in appendix B of this regulation or listed in item 32 (Battles and Campaigns) of the WD AGO Form 53-55.  This regulation states that authorized bronze service stars will be worn on the appropriate campaign or service medal including the European-African-Middle Eastern Campaign Medal.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that all of his decorations and citations are not listed on his WD AGO Form 53-55 and that he believes that he is entitled to the award of the Purple Heart.

2.  His contentions have been noted and are determined to be partially substantiated.  The available evidence shows that he was informed by the National Personnel Records Center that he is entitled to the European-African-Middle Eastern Campaign Medal with two bronze service stars and his WD AGO Form 53-55 were never amended to reflect this information.  Therefore, it would be appropriate to amend his WD AGO Form 53-55 at this time.

3.  However, it does not appear that the applicant is entitled to the award of the Purple Heart.  While he may have been injured when he was in the Army, he admits that in neither of the incidents to which he refers was he treated by medical personnel.  Other than the information that he provided to the VA and his own statements, there is no available evidence that shows that he was injured/
wounded as a result of hostile action by enemy forces.

4.  The applicant does not meet the criteria contained in the applicable regulation; therefore, he is not entitled to the award of the Purple Heart.

5.  In view of the foregoing, it would now be in the interest of justice to correct the applicant’s records as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ____X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his WD AGO Form 53-55 to include two bronze service stars for wear on his European-African-Middle Eastern Campaign Medal.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to awarding him the Purple Heart.



      ___________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)                                         AR20090000431



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ABCMR Record of Proceedings (cont)                                         AR20090000431



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