IN THE CASE OF:	  

		BOARD DATE:	       23 JUNE 2009

		DOCKET NUMBER:  AR20090004168 


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 his medical records contain incorrect information.  His records should show that while guarding a pontoon bridge, he was knocked off his feet from an enemy bomb blast that fractured his left knee when landing on it and then, while trying to get off the pontoon bridge, his left leg stepped in a hole that was made by the bomb blast on the bridge.  He feels that the injury to his knee was a direct result of hostile action which should entitle him to the Purple Heart.

3.  The applicant provides a copy of his WD AGO Form 53-55 (Enlisted Record and Report of Separation), dated 10 January 1946; and miscellaneous copies of his clinical records, dated on various dates during World War II 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 25 January 1943 and entered active military service at Camp Lee, VA, on 1 February 1943.  This form also shows that at the time of his separation, the applicant held military occupational specialty 405 (Clerk Typist) and was assigned to Company A, 826th Tank Destroyer Battalion.

4.  The applicant’s WD AGO Form 53-55 shows he departed the United States on 15 August 1944 and arrived in the Asiatic-Pacific Theater (APT) on 4 September 1944.  He departed the APT on 8 December 1945 and arrived back in the United States on 21 December 1945.  He completed 1 year, 7 months, and 1 days of continental service and 1 year, 4 months, and 9 days of foreign service. He was honorably separated on 10 January 1946.

5.  Item 31 (Military Qualifications and Date) of the applicant’s WD AGO Form   53-55 shows he was awarded 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 Bismarck Archipelago, New Guinea, South Philippines, and Luzon campaigns during his service in World War II.

7.  Item 33 (Decorations and Citations) of the applicant’s WD AGO Form 53-55 shows he was awarded the American Theater Campaign Medal, Asiatic-Pacific Theater Campaign Medal with four bronze service stars, Philippines Liberation Medal with two bronze service stars, Army Good Conduct Medal, and World War II Victory Medal.  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's WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty, or Retirement), shows the applicant underwent a physical examination on 18 December 1945.  The attending physician noted that the applicant suffered a fracture of the patella during a fall on 30 April 1945 on Luzon, Philippines, and that he was hospitalized at the Army General Hospital, Leyte, Philippines for a period of 3 months.

10.  The applicant's Medical Department Form 55A (Clinical Record Brief), dated 15 June 1945, shows he sustained a simple fracture to his patella when he stepped in a hole at 2100 hours on 30 April 1945 near San Fabian, Luzon.

11.  The applicant's other clinical records, including his abbreviated clinical record, nurse's notes, radiology request, supplemental reports, dated on various dates, subsequent to his knee injury, all state that his knee injury was a non-battle injury that resulted from an accidental fall.

12.  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.

13.  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 by medical personnel, 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 knee that he claims to have occurred as a result of enemy action and the evidence he submitted was carefully considered.  However, there is insufficient evidence to grant him the Purple Heart in this case.

2.  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.  A "wound" is defined as an injury to any part of the body from an 
outside force or agent sustained under conditions caused by hostile action.  When contemplating an award of this decoration, the key issue 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 award.

3.  The evidence of record shows that the applicant suffered a non-battle injury to his knee when he stepped in a hole on 30 April 1945.  There is no evidence that this injury occurred as a result of enemy action or that the hole was caused by enemy action.  Regrettably, absent evidence which conclusively shows that the applicant sustained wounds or injuries as a result of hostile action, 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.



      ________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)                                         AR20090004168



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ABCMR Record of Proceedings (cont)                                         AR20090004168



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