IN THE CASE OF:	  

		BOARD DATE:	  7 July 2009

		DOCKET NUMBER:  AR20090003604 


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 believes he should have been awarded the Purple Heart for wounds he received during World War II.

3.  In support of his application, the applicant provides copies of his WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge) and an affidavit from a former service member.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers requests and statements to the applicant and provides no documentation in support of the applicant's 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, and documentation submitted by the applicant, for the Board to conduct a fair and impartial review of this case.  

3.  The applicant's available military records show that he was inducted into the Army of the United States on 16 March 1942 and entered on active duty on the same day.  He completed training in military occupational specialty 060, Cook.  He served overseas from 22 December 1944 to 22 October 1945.

4.  The applicant was honorably discharged from active duty on 7 November 1945, for the Convenience of the Government at Demobilization.  

5.  Entries on the applicant's WD AGO Form 53-55 do not show award of the Purple Heart.  Item 31 (Military Qualification and Date) lists the following award: the Expert Marksmanship Qualification Badge with Rifle Bar (M1 Rifle).  Item 33 (Decorations and Citations) lists the following awards:  the Good Conduct Medal, the American Theater Service Medal, the European-African-Middle Eastern Campaign Medal with two bronze service stars, and the World War II Victory Medal.  Item 55 (Remarks) lists award of the Honorable Service Lapel Button.

6.  Item 34 (Wounds Received in Action) of the applicant’s WD AGO Form
53-55 shows the entry, "None," to indicate he was not wounded while he served during World War II.

7.  There are no orders in the applicant’s available service personnel records that show he was awarded the Purple Heart.  There is also no evidence in his records that he was wounded or treated for wounds as a result of hostile action.  

8.  The applicant submits a copy of an affidavit, notarized on 18 April 1949, from a former service member.  The former service member stated, in effect, that in March 1945, while riding in a convoy, the applicant complained about receiving a 
blow to his back and he noticed the applicant's back was black and blue.  The former service member also stated that in May 1945, the applicant was seriously burned about the arms and chest due to the field range catching fire.  He remembered visiting the applicant in the hospital on several occasions.  
The former service member further stated he was submitting the affidavit to be used in connected with the applicant's application for compensation from the Veterans Administration.

9.  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 the 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.  By regulation, to be awarded the Purple Heart, it is necessary to establish that a Soldier was wounded or injured in action.  There is no evidence of record, and the applicant has provided insufficient evidence, which shows that he was wounded or treated for wounds as a result of hostile action during World War II.  Based on the foregoing, the applicant does not meet the regulatory requirement for award of the Purple Heart; therefore, he is not entitled to this award.  

2.  The documentation provided by the applicant was also considered; however, the overall merits of the case, including the submissions are insufficient as a basis to grant the applicant's request.  In all cases the burden of proof rests with the applicants to submit substantiating proof of their entitlement for award of the Purple Heart in the absence of evidence of records.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090003604



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090003604



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1