IN THE CASE OF:	  

		BOARD DATE:	      16 JUNE 2009

		DOCKET NUMBER:  AR20090002708 


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 correction of his records to show he was wounded and that he was awarded the Purple Heart.  

2.  The applicant states the fact that he was wounded on 10 May 1945 in Augsburg, Germany was omitted from his discharge [document].

3.  The applicant provides a letter of support, dated 12 January 2009; general orders awarding him the Good Conduct Medal, dated 28 October 1943; his Honorable Discharge Certificate; and his WD AGO Form 53-55 (Enlisted Record and Report of Separation) in support of his 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 WD AGO Form 53-55 shows he was inducted into the Army of the United States on 17 October 1941.  His WD AGO Form 100 (Army Separation Qualification Record) shows he completed training as a cook and a mess sergeant.  His WD AGO Form 53-55 also shows he served in the European African-Middle-Eastern Theater during the period 18 November 1942 to 25 July 1945.  

4.  His reconstructed records contain a Morning Report, dated 8 May 1945, which shows he sustained a gunshot wound penetrating his right axilla caused by a stray bullet on 7 May 1945 while he was sitting in the quarters bivouac area in Augsburg, Germany.

5.  His reconstructed record also contains a Form 52b (Medical Department) which shows he sustained a mild fragment wound penetrating his right axilla.  This document indicated the applicant was struck in the armpit and the source was undetermined.  

6.  His WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty or Retirement) shows he sustained a gunshot wound to his right arm in 1945.

7.  The applicant was honorably discharged on 21 August 1945.  His WD AGO Form 53-55 shows he was awarded the European-African-Middle Eastern Campaign Medal with one silver service star and four bronze service stars, the Army Good Conduct Medal, Bronze Arrowhead, and American Defense Service Medal.  

8.  His WD AGO Form 53-55 shows the entry "None" in item 34 (Wounds Received in Action).  There is no evidence which indicates he sustained wounds as a result of hostile action.  

9.  A health record research project, commonly referred to as the "SGO Files", involved transposing the hospital admission card data from the periods of World War II and the Korean conflict onto magnetic tape.  In 1988 the National Research Council made these tape files available to the National Personnel Records Center (NPRC).  The availability of the information to the NPRC received considerable publicity by the various veteran’s service organizations.  It was widely believed that these tapes would become a valuable substitute for the records lost in the NPRC fire of 1973.  These records show the applicant sustained a non-battle injury on 7 May 1945.

10.  In a 22 March 1990 letter, the U.S. Army Reserve Personnel Center informed the applicant that, in the absence of documented medical records that show his injury was the result of enemy action, he was not eligible for the Purple Heart.  

11.  The applicant provided a letter of support from a former fellow Soldier.  The former Soldier stated, in effect, that he had known the applicant since 1941 when he transferred into the 927th Signal Battalion, XIIth Tactical Air Command at Will Rogers Field, Oklahoma, OK.  During their 3 years in North Africa, Sicily, Italy, France, and Germany, they took part in nine campaigns.  He indicated that the Company B Morning Report should give an account of the applicant's being wounded.  The Morning Report should also indicate the field hospital to which the applicant was taken.  The former fellow Soldier stated the applicant was wounded at Augsburg, Germany on 10 May 1945.  He remembers the applicant well; the applicant was a fine Soldier.  

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.  This 
regulation states that when contemplating award of the Purple Heart, the key issue that commanders must take into consideration is the degree in which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not the sole justification for award.  It further states that injuries or wounds which clearly do not justify award of the Purple Heart includes accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was wounded on 10 May 1945 in Augsburg, Germany and that the incident was omitted from his discharge document.  

2.  The applicant's Report of Physical Examination prepared prior to separation from active duty indicates he sustained a gunshot wound to his right arm in 1945.  The 8 May 1945 Morning Report shows he sustained a gunshot wound penetrating his right axilla caused by a stray bullet on 7 May 1945 while he was sitting in the quarters bivouac area in Augsburg, Germany.  These medical documents do not verify that the applicant sustained a wound as a result of hostile action.  In addition, the "SGO Files" specifically indicate that the applicant sustained a non-battle injury on 7 May 1945.

3.  Therefore, there is insufficient evidence on which to base correction of his records to show he was wounded as a result of hostile action or to award him the Purple Heart.  

4.  The letter from the former fellow Soldier was considered.  Regrettably, this document alone is not sufficient to meet the regulatory burden of proof necessary to support award of the Purple Heart in this case.  

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.




      _______ _   _XXX______   ___
               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)                                         AR20090002708



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ABCMR Record of Proceedings (cont)                                         AR20090002708



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