IN THE CASE OF:	  

		BOARD DATE:	  	  28 April 2009

		DOCKET NUMBER:  AR20090001047 


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 award of the Purple Heart.

2.  The applicant states he should have received a Purple Heart for a shrapnel wound to his left wrist.  He states the Purple Heart was not issued and overlooked at the time of his injury. 

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) with a date of separation of 20 October 1945 and a decision from the Veterans Administration (now known as the Department of Veterans Affairs [VA]) Board of Veterans Appeals (BVA).

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 personnel records were not available and may have been lost or destroyed in a fire at the National Personnel Records Center in 1973.  The only record available to the Board was the WD AGO Form 53-55 submitted by the applicant.

3.  The applicant's WD AGO Form 53-55 shows he was inducted on 5 February 1943 and entered active duty on 12 February 1943.  He served in the North African Theater of Operations (NATO) from 21 July 1943 to 8 August 1943.  He served in the European Theater of Operations (ETO) from 10 August 1943 to 
4 October 1945.

4.  On 20 October 1945, the applicant was honorably discharged from active duty.  He had completed 2 years, 8 months, and 5 days of active service, with
3 days time lost.

5.  Item 33 (Decorations and Citations) of his WD AGO Form 53-55 does not contain an entry for the Purple Heart.

6.  Item 34 (Wounds Received in Action) of the applicant’s WD AGO Form 53-55 contains the entry "None."

7.  The applicant's service medical records were not available for review.

8.  The BVA decision, dated 30 August 1949, submitted by the applicant denied an increase in compensation for the applicant's residuals of a shrapnel wound to his left wrist.  In this decision the BVA states the applicant accidently sustained a small penetrating shell fragment wound to his left wrist while trying to detonate a .50 caliber primer.

9.  Army Regulation 600-45 (Decorations), then in effect, which governed the award of Army decorations until 23 August 1951, stated that for the purpose of considering an award of the Purple Heart, a “wound” is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.  

10.  Title 38, U.S. Code, provides for the VA to make a determination and award compensation for disabilities which were incurred in or aggravated by active military service.  The VA does not make any determination as to whether an injury was received as a result of hostile action.



DISCUSSION AND CONCLUSIONS:

1.  Item 34 of the applicant’s WD AGO Form 53-55 does not indicate he received any wounds in action and his service medical records were not available for review.  Therefore, in the absence of military records which show that the applicant was wounded or treated for wounds resulting from hostile action, there is insufficient evidence upon which to base award of the Purple Heart in this case.

2.  Decisions from the VA, to include the BVA, determine whether an injury was incurred in or aggravated by active military service.  These decisions do not determine nor is it intended that they determine whether an individual's injuries were a result of hostile action.  However, in this case the BVA decision specifically states the applicant's injury was due to an accident while trying to detonate a .50 caliber primer.  

3.  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 that 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 our Nation.  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)                                         AR20090001047



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ABCMR Record of Proceedings (cont)                                         AR20090001047



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