IN THE CASE OF:	  

		BOARD DATE:	       17 March 2009

		DOCKET NUMBER:  AR20090002183 


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 injured his knee when a V2 missile rocket exploded behind him and blew him over his foxhole and down a hill.  He relates that he was sent to a field hospital, but when he was identified for entry into the "replacement pool" he got a ride back to his unit and depended on local treatment for the next 6 months.  

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), the front page of his WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty or Retirement), his WD AGO Form 100 (Separation Qualification Record), a letter from the National Personnel Records Center to the effect that his records were probably lost or destroyed in the 1973 fire, and a letter providing his personal account of the incident. 

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 his records were lost or destroyed in that fire.  The available records consist of those records described above.

3.  The applicant was inducted and entered active duty on 16 June 1943.  He completed training and joined the 563rd Signal Aircraft Warning Battalion (a highly technical, radar equipped enemy aircraft detection and friendly aircraft control unit).  He reached the European Theater of Operations on 7 January 1944.  He served with that unit throughout the Normandy, Northern France, Ardennes-Alsace, Rhineland and Central Europe campaigns and embarked for the United States on 31 July 1945. 

4.  The report of the applicant's 12 December 1945 separation physical examination for separation shows in item 10 that he reported a disabling condition.  

5.  That incident is described in a typewritten entry in item 11 as follows:  "Ligaments torn, left knee, incurred when soldier dove into foxhole in Germany Jan, 1945, and hospitalized since 12 June to 7 December 1945, for two operations for torn (over)."

6.  The above injury is further described in item 15 (Skin) as, "Surgical scar, left knee…" and in item 21 (Musculoskeletal) as, "Flexion, left knee, limited to 100 degrees…"   

7.  In item 40 the examining physician referred to the condition described in item 11 and 21 and indicated that, in his opinion, it would be disabling. 

8.  The applicant was discharged as a sergeant on 12 December 1945.  His awards are listed on his WD AGO 53-55 as the American Campaign Medal, European-African-Middle Eastern Campaign Medal with five bronze service stars, World War II Victory Medal, Good Conduct Medal and Army Lapel Button. 


9.  A search of the historical records of the applicant's unit, "reflects that the unit was subjected to enemy artillery fire throughout the month of January 1945."  

10.   Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.  The applicant states that he injured his left knee when a V2 missile rocket exploded behind him and blew him over his foxhole and down a hill.   

2.  The typed, item 11 entry was undoubtedly prepared from the available medical records by a third party [the applicant would not have referred to himself in the third person as in, "when soldier dove."]  

3.  The reported dates add further credibility to the applicant's assertions.  The record shows he was injured in January 1945 and hospitalized in June 1945.  This comports precisely with his assertion that he was cared for in the unit for the first 6 months.  Additionally, the historical records of the applicant’s unit reflects that the unit was subjected to enemy artillery fire throughout the month of January 1945.  

4.  The WD AGO Form 38 clearly reflects treatment for a wound that was sustained as the result of enemy action.  

 5.  The record shows the applicant was treated for  a wound that was sustained as the result  of enemy action.  He earned and should be awarded the Purple Heart.


BOARD VOTE:

____X__   ____X___  ___X ___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding him the Purple Heart for a wound sustained in January 1945 and by showing that, in addition to the authorized awards shown on his WD AGO 53-55 he was awarded the Purple Heart.




      _______ _  X _______   ___
               CHAIRPERSON
      



ABCMR Record of Proceedings (cont)                                         AR20090002183





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ABCMR Record of Proceedings (cont)                                         AR20090002183



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