IN THE CASE OF:	  

		BOARD DATE:	  2 June 2009

		DOCKET NUMBER:  AR20090002180 


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, in effect, that his records be corrected to show second and third awards of the Purple Heart (referred to as First and Second Oak Leaf Clusters).

2.  The applicant states, in effect, that his bullet wounds were sustained before his chest wound.  He states, in effect, that Major Smackler said after he operated on his right chest and lung that he cleaned up a bullet wound and put four stitches in it; and cleaned a left chest wound which hit a leather cigarette pouch and put a burn on his chest.  He further states that he has a scar on his leg and a cigarette pouch with a hole through it.

3.  The applicant provides no additional documentary evidence in support of this application. 

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's military records show he was inducted into the Army of the United States on 2 March 1943 and he entered active duty on 9 March 1943.  He was awarded the military occupational specialty of rifleman.

4.  The applicant's WD AGO Form 53 (Report of Separation) with a date of separation of 12 January 1945 shows he served in the European-African-Middle Eastern (EAME) Theater of Operations from 15 October 1943 to 6 March 1944.  

5.  On 12 January 1945, the applicant was released from active duty with a Certificate of Disability.  He had completed 1 year, 9 months, and 20 days of active service that was characterized as honorable. 

6.  Item 34 (Decorations and Citations) of his WD AGO Form 53 contains an entry for one Purple Heart.

7.  Item 35 (Wounds Received in Action) of the applicant's WD AGO Form 53 contains the entry "Wounded in battle action in Italy, 7 January 1944."

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

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.  Army Regulation 600-8-22 (Military Awards) states, in pertinent part, that the oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Purple Heart.  A Purple Heart is authorized for the first wound suffered under conditions indicated above, but for each subsequent award an oak leaf cluster will be awarded to be worn on the medal or ribbon.  Not more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that he is entitled to award of two oak leaf clusters for wear with his already-awarded Purple Heart because he sustained his bullet wounds before his chest wound.  In this regard, Item 35 of his WD AGO Form 53 only indicates he received a wound in action on 7 January 1944 and his service medical records were not available for review.  There is insufficient evidence that the applicant was wounded a second or third time.  Regrettably, the evidence presented is insufficient to award first and second oak leaf clusters to the applicant's Purple Heart and correct his records to show a second and third award of this decoration.

2.  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)                                         AR20090002180



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ABCMR Record of Proceedings (cont)                                         AR20090002180



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