IN THE CASE OF:  

		BOARD DATE:	25 June 2009  

		DOCKET NUMBER:  AR20090003556 


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 and the Bronze Star Medal.

2.  The applicant states that one day in July 1944, he was instructed to report to the service company and that the service company was under mortar attack.  Upon arrival, he saw two cans of fuel burning on a vehicle.  He picked up the cans and threw them out of the vehicle and then drove the vehicle to safety.  However, he sustained burns to his hands and wrists during this incident.

3.  The applicant provides a copy of his WD AGO Form 53-55 (Enlisted Record and Report of Separation), dated 21 January 1946, 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 and entered active service in Hartford, CT, on 28 November 1942.  This form also shows that at the time of separation, the applicant held military occupational specialty 055 (Clerk-General) and was assigned to Company D, 747th Amphibian Tank Battalion.  

4.  The applicant’s WD AGO Form 53-55 shows he departed the United States on 11 February 1944 and arrived in the European Theater of Operations (ETO) on 23 February 1944.  He departed the ETO on 3 January 1946 and arrived back in the United States on 16 January 1946.  He completed 1 year, 2 months, and 18 days of continental service and 1 year, 11 months, and 6 days of foreign service.  He was honorably separated on 21 January 1946.

5.  Item 31 (Military Qualifications and Date) of the applicant’s WD AGO Form 53-55 shows the entry "Unknown."

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

7.  Item 33 (Decorations and Citations) of the applicant’s WD AGO Form 53-55 shows he was awarded the European-African-Middle Eastern Theater Campaign Ribbon with bronze service arrowhead, the Good Conduct Medal, the American Theater Campaign Ribbon, and the World War II Victory Medal.  Item 33 does not show award of the Purple Heart and/or the Bronze Star Medal.

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

9.  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.

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

11.  Army Regulation 600-8-22 provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  Furthermore, this regulation states, in pertinent part, that the Bronze Star Medal is authorized for each individual who was cited in orders or awarded a certificate for exemplary conduct in ground combat between 7 December 1941 and 2 September 1945 or whose achievement or service, during that period, was confirmed by documents executed prior to 1 July 1947.  An award of the Combat Infantryman Badge or the Combat Medical Badge is considered to be a citation in orders.  Therefore, the Bronze Star Medal is to be awarded to individuals who were authorized either badge for service during World War II.

12.  Title 10 of the U. S. Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be awarded the Purple Heart and the Bronze Star Medal due to burns suffered when he removed two fuel cans from a burning vehicle during a mortar attack was carefully considered.  However, there is insufficient evidence to grant the applicant the Purple Heart or the Bronze Star Medal in this case. 
2.  With respect to award of the Purple Heart, the Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria.  When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to 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 sole justification for the award. 

3.  There is no evidence in the applicant’s available service personnel records which shows the applicant’s burns resulted from hostile action or that he was treated for such burns.  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 applicant the Purple Heart in this case.

4.  With respect to award of the Bronze Star Medal, the governing Army regulation states that for personal decorations, formal recommendation, approval through the chain of command, and announcement of orders are required.  In the absence of orders, there is insufficient evidence to award the applicant the Bronze Star Medal.  Nevertheless, while the available evidence is insufficient for awarding the applicant the Bronze Star Medal, this in no way affects the applicant’s right to pursue his claim for the Bronze Star Medal by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

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)                                         AR20090003556



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ABCMR Record of Proceedings (cont)                                         AR20090003556



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