IN THE CASE OF:	  

		BOARD DATE: 	        28 May 2009

		DOCKET NUMBER:  AR20090003060 


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 that he was injured during battle in October 1944 when an antipersonnel bomb exploded outside his foxhole causing an injury to his ear. He was transferred to a hospital in Marseilles, France, where he remained for three weeks, but never received the Purple Heart.  He adds that although he has no medical record, as they were burned during the St. Louis fire, he must have proved his point as he is getting a monthly disability check.

3.  The applicant provides a copy of his WD AGO Form 53-55 (Enlisted Record and Report of Separation), dated 4 October 1945; a copy of his Honorable Discharge Certificate, dated 4 October 1945; a copy of a letter from the Commander, Supreme Headquarters Allied Expeditionary Force, to the troops; and an extract, dated 1992, of a comrade's World War II (WWII) recollections and memoirs 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 enlisted in the Regular Army and entered active duty in Dayton, OH, on 26 November 1941.  This form also shows that at the time of his separation, the applicant held military occupational specialty 014 (Automotive Mechanic) and was assigned to the 3456th Ordnance Medium Auto Maintenance Company.

4.  The applicant’s WD AGO Form 53-55 shows he departed the United States on 3 June 1944 and arrived in England and ultimately the European-African-Middle Eastern (EAME) theater of operations on 11 June 1944.  He departed the EAME theater on 7 September 1945 and arrived back in the United States on 22 September 1945.  He completed 2 years, 6 months, and 19 days of continental service and 1 year, 3 months, and 20 days of foreign service.  He was honorably separated on 4 October 1945.

5.  Item 31 (Military Qualifications and Date) of the applicant’s WD AGO 
Form 53-55 shows he was awarded the Motor Vehicle Driver Badge and the Marksman Marksmanship Qualification Badge with Rifle Bar.

6.  Item 32 (Battles and Campaigns) of the applicant’s WD AGO Form 53-55 shows he participated in the Normandy, Northern France, Rhineland, Ardennes, and Central Europe campaigns during his service in WWII.

7.  Item 33 (Decorations and Citations) of the applicant’s WD AGO Form 53-55 shows he was awarded the Army Good Conduct Medal and the European-African-Middle Eastern Campaign Medal with five bronze service stars.  Item 33 does not show award of the Purple Heart.

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

9.  The applicant submitted a copy of a comrade's recollection and memoirs of WWII service in which he states that that during the night of 14 October 1944, the enemy unloaded several antipersonnel bombs against him/his unit and that none of the unit members was hit; however, a combat engineer company in the same location suffered heavy casualties.  He and another Soldier [the applicant] had dug a foxhole and covered it with dirt.  They knew the enemy bombs were filled with small round bombs that rolled everywhere before exploding with a delayed fuse.  As the planes approached, he and the applicant lunged into the foxhole and ultimately spent the entire night there.

10.  The Purple Heart was established by General George Washington at Newburgh, New York, on 7 August 1782 during the Revolutionary War.  It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action.

11.  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, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be awarded the Purple Heart for an injury to his ear caused by an antipersonnel bomb explosion outside his foxhole in October 1944 and the evidence he submitted was carefully considered. However, there is insufficient evidence to grant him the Purple Heart in this case.

2.  The comrade’s personal chronicles and recollection of events were noted.  However, chronicles of events, which were prepared and/or are submitted more than 50 years after the fact, do not by themselves conclusively prove the applicant was wounded or injured as a result of hostile action.  There is no evidence in his reconstructed records that shows he was wounded or injured as a result of hostile action or treated for such wounds.  Regrettably, absent evidence which conclusively shows that the applicant sustained wounds or injuries as a result of hostile action, that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is insufficient basis for awarding the Purple Heart to the applicant in this case.

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)                                         AR20090003060



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ABCMR Record of Proceedings (cont)                                         AR20090003060



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