IN THE CASE OF:	  

		BOARD DATE:	        21 MAY 2009

		DOCKET NUMBER:  AR20090003171 


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 the records of her deceased husband, a former service member (FSM), be corrected to reflect that he was injured as a result of enemy fire and that he is entitled to award of the Purple Heart.

2.  The applicant states, in effect, that the FSM served in France during World War II and while working on a fire truck at some point during the war, he was blown out of the fire truck and he still had shrapnel in his body when he died in 1980.  Additionally, he also lost teeth during the incident.

3.  The applicant provides a statement regarding the FSM's service and the incident in question, a copy of the FSM's Certificate of Death, and a copy of the FSM's WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge).

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 (NPRC) 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 FSM was born on 5 February 1925 and was inducted into the Army of the United States on 3 May 1943 and entered active service on 10 May 1943.  He entered active duty at Camp Grant, Illinois on 10 May 1943.  He completed his training as a light truck driver and departed for the European Theater of Operations (ETO) on 12 October 1943.  He was assigned to the 1222nd Engineer Fire Fighting Platoon and participated in four campaigns.

4.  The available records contain one admission history showing that the FSM was admitted to the hospital due to a complaint of pain in the lumbar area of the back.  It indicates that while driving a 1 1/2 ton truck just outside of Belgium on 16 January 1945, the truck skidded and hit a tree, after which he fell out of the truck and was unconscious for a few minutes.  He was serving in the rank of private at the time.

5.  The FSM was promoted to the rank of TEC/5 and departed the ETO on 17 November 1945.  He arrived in the continental United States on 26 November 1945 and was transferred to Fort Sheridan, Illinois, where he was honorably discharged on 1 December 1945.  His WD AGO Form 53-55 indicates that he was awarded the World War II Victory Medal, European-African-Middle Eastern Theater Ribbon with four bronze service stars, and the Good Conduct Medal and that he was single at the time of his discharge. 

6.  Item 34 of his WD AGO Form 53-55 (Wounds Received in Action) contains the entry "None."  That form is authenticated by the FSM's signature and right thumb print.

7.  A review of the available records failed to show any indication that the FSM was wounded or injured as a result of enemy action or that any treatment for such wounds or injuries was made a matter of record.

8.  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.

DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant's claim that her husband was wounded/
injured during World War II is not in doubt, there simply is no evidence to support her claim in the available records.

2.  Unfortunately, the destruction of the FSM's records in the 1973 fire at the NPRC, coupled with the passage of time (60+ years) makes it difficult at best to determine what happened in the FSM's case.

3.  Therefore, in the absence of evidence to show that the FSM was wounded/
injured as a result of enemy action and that treatment for such wounds/injuries were made a matter of record, it must be presumed that what the Army did in his case at the time was appropriate.

4.  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 this 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 her late husband in service to the United States during World War II.  The applicant and all Americans should be justifiably proud of his service in arms.



      ________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)                                         AR20090003171



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ABCMR Record of Proceedings (cont)                                         AR20090003171



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