IN THE CASE OF:
BOARD DATE: 25 June 2009
DOCKET NUMBER: AR20090002449
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 leg injury incurred in action against the enemy during World War II be made a matter of record.
2. The applicant states, in effect, that he injured his leg in action against the enemy in November 1946 when he and another Soldier were guarding boats at a river crossing and were overrun by German Soldiers. His friend was shot in the leg and he grabbed a machinegun and ammunition and while running for cover tripped over a railroad tie and busted his left kneecap and pulled the ligaments in his leg. He goes on to state that he stopped the Germans from taking the boats until help arrived and he laid on the ground for 7 hours until an ambulance arrived and took him to the hospital; however, the hospital was full and he was sent back to his unit on crutches. He further states that his injury has never been recorded and he has continued to have problems with it.
3. The applicant provides a one-page statement explaining his application, a copy of a WD AGO Form 100 (Separation Qualification Record, a copy of his WD AGO Form 53-55 (Honorable Discharge and Enlisted Record and Report of Separation) and two certificates of training.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants 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 (NPRC) in 1973. It is believed that the applicants 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 was born on 14 September 1927 and was inducted in Indianapolis, Indiana on 18 December 1945. He was honorably discharged on 19 December 1945 at Camp Atterbury, Indiana for the purpose of enlisting in the Regular Army. At the time of his discharge he was entitled to the World War II (WWII) Victory Medal. He enlisted in the Regular Army on 20 December 1945 for a period of 18 months.
4. He completed his training and departed for the European Theater of Operations (ETO) on 4 April 1946. He attained the rank of Tec 5 and departed the ETO on 22 April 1947. He arrived in the Continental United States on 1 May 1947 and was transferred to Camp Kilmer, New Jersey, where he was honorably discharged on 12 June 1947.
5. The WD AGO Form 53-55 issued to the applicant at the time of his discharge shows that he was awarded the Army of Occupation Medal and the WWII Victory Medal.
6. A review of the available records fails to show any indication that the applicant was injured while serving on active duty.
7. Victory in Europe Day or VE Day was on 8 May 1945, the date when the WWII Allies formally accepted the unconditional surrender of the armed forces of Nazi, Germany.
DISCUSSION AND CONCLUSIONS:
1. While the sincerity of the applicant's claim that he was injured while serving on active duty is not in question, unfortunately, there is insufficient evidence in the available records to substantiate his claim.
2. It should be noted however that at the time the applicant was inducted, the hostilities had ended 7 months prior. Accordingly, it is unlikely that his injury was the result of enemy action.
3. Unfortunately, the loss of his records at the NPRC fire in 1973 and the passage of time (60+ years) makes it difficult at best to determine exactly what happened in his case. Therefore, in the absence of evidence to show that he was injured on active duty, there appears to be no basis to grant his request to correct his records to reflect an injury to his left leg.
5. In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
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) AR20090002449
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