IN THE CASE OF:	  

		BOARD DATE:	       9 JUNE 2009

		DOCKET NUMBER:  AR20090004279 


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 the records of her deceased husband, a former service member (FSM), be corrected to show he was wounded in combat and to be awarded the Purple Heart. 

2.  The applicant states that the FSM was wounded during enemy action on Russell Islands in the spring of 1943 and that during the heat of war, no documentation was made of the injury to his finger.

3.  The applicant provides a copy of the FSM’s WD AGO Form 53-55 (Enlisted Record and Report of Separation), dated 14 October 1945; a copy of the FSM’s Honorable Discharge Certificate, dated 14 October 1945; a copy of a photograph of Russell Island; a copy of a letter, dated 11 August 1947 from the Veterans Administration (VA), Roanoke, VA; a copy of the FSM’s certificate of death, dated 26 September 1999; and a copy of a letter, dated 29 January 2009, from the FSM’s son, in support of her 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 FSM’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 FSM’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’s WD AGO Form 53-55 shows he enlisted in the Regular Army and entered active duty in Richmond, VA, on 16 July 1942.  This form also shows that at the time of his separation, the FSM held military occupational specialty (MOS) 345 (Truck Driver) and was assigned to Headquarters Battery, 152nd Field Artillery Battalion.  

4.  The FSM’s WD AGO Form 53-55 shows he departed the United States on 1 October 1942 and arrived in the Asiatic Pacific Theater of Operations (APTO) on 22 October 1942.  He departed the APTO on an unknown date and arrived back in the United States on 3 October 1945.  He completed 2 months and 26 days of continental service and 3 years and 3 days of foreign-service.  He was honorably separated on 14 October 1945.

5.  Item 32 (Battles and Campaigns) of the FSM’s AGO Form 53-55 shows he participated in the New Guinea campaign during his service in World War II (WW).

6.  Item 33 (Decorations and Citations) of the FSM’s AGO Form 53-55 shows he was awarded the Good Conduct Medal, the Asiatic-Pacific Theater Campaign Medal with one bronze service star, and the Philippine Liberation Ribbon with one bronze service star.  Item 33 does not show award of the Purple Heart.

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

8.  In a letter, dated 29 January 2009, the FSM’s son states that his father spoke several times about the fact that he was supposed to be awarded the Purple Heart and that the paperwork got messed up.  He remembers his father telling him about the Japanese air raid that occurred in the spring of 1943 at the coral air strip in the Russell Islands where he was stationed.  During the air raid, the FSM was assigned a 20-mm anti-aircraft gun and that during non-stop firing, the gun jammed and the barrel blew up, amputating the tip of his index finger down to the first joint.  After the attack, the medics patched it up to the best of their abilities but it was too slow to heal and caused him trouble for many years.  He later sought disability through the VA but it was deemed at less than 10 percent.  

9.  The applicant submitted a copy of a VA letter, dated 11 August 1947, from the Roanoke, Virginia, Regional Office, in which an adjudication officer stated that service-connection had been established for amputation of tip of third finger of right hand, but compensation could not be granted as the minimum 10 percent had not been met.  

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.

12.  Army Regulation 600-8-22 also provides, in pertinent part, for award of the Purple Heart to individuals wounded or killed as a result of “friendly fire” in the “heat of battle” as long as the “friendly” projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the records of her deceased husband, a FSM, should be corrected to show he was wounded in combat and that he should be awarded the Purple Heart for an injury to his index finger caused by a jammed weapon system in the spring of 1943 and the evidence she submitted was carefully considered.  However, there is insufficient evidence to grant the FSM the Purple Heart in this case. 


2.  The FSM son’s recollection of his deceased father’s personal chronicles and/or recollection of events were noted.  However, there is no evidence that the FSM was wounded as a result of "friendly fire" in the "heat of battle" while the "friendly" projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.  The chronicles of events, which were prepared and/or are submitted more than 65 years after the fact, do not by themselves conclusively prove the applicant was wounded or injured in action. 

3.  There is also no evidence in the FSM’s 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, and 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:

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.




      _______ _   __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)                                         AR20090004279





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ABCMR Record of Proceedings (cont)                                         AR20090004279



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