IN THE CASE OF:	

		BOARD DATE:	23 July 2009  

		DOCKET NUMBER:  AR20090004772 


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 defers his request to his counsel.

2.  The applicant defers his statement to his counsel.

3.  The applicant provides statements through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's earlier request for correction of his WD AGO Form 53-55 (Enlisted Record and Report of Separation) to show award of the Purple Heart.

2.  Counsel states that the applicant has recently discovered further evidence in the form of doctor's notes and/or reports from the time of his injuries that describe shrapnel wounds to his right arm which occurred relative to artillery shelling that was occurring at the time he was accidently shot by a fellow Soldier.  Counsel adds that the applicant states that the reference to the foreign body in the patient's arm, mentioned in the doctor's notes on 10 November 1944, is evidence that he mentioned receiving shrapnel from the shelling that occurred on 2 November 1944.  Additionally, a request for and an award of the Purple Heart is also noted on the field hospital register, dated 10 November 1944.  These documents also indicate that the applicant was awarded the Purple Heart by General Orders Number 3, issued by Headquarters, 174th General Hospital, on 23 November 1944.
3.  Counsel provides a copy of the original Board's decision, dated 29 November 2001; a copy of a Form 52b (Medical Department), dated 2 November 1944; a copy of a supplemental record, dated 2 November 1944; a copy of a medical document, dated 2 November 1944; a copy of the 30th General Hospital Register, dated 10 November 1944; copies of doctor notes, dated 10 November 1944; a copy of a Form 52C (Medical Department), dated 22 November 1944; a copy of the 174th General Hospital Register, dated what appears to be 16 November 1944; and a copy of another medical document, dated 19 December 1944, in support of the applicant's request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2001060581, on 29 November 2001.

2.  The applicant submitted, through counsel copies of Forms 52b and 52C; a copy of a supplemental record; a copy of a medical document; a copy of the 30th General Hospital Register; copies of doctor notes; a copy of the 174th General Hospital Register; and a copy of another medical document, which were not previously reviewed by the ABCMR; therefore, they are considered new evidence and as such warrant consideration by the Board.

3.  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.

4.  The applicant’s WD AGO Form 53-55 shows he was inducted into the Army of the United States on 19 October 1943 and entered active service in Baltimore, MD, on 9 November 1943.  This form also shows that at the time of his separation, the applicant held a construction worker (188) military occupational specialty and was assigned to Company A, 23rd Armored Engineer Battalion.

5.  The applicant’s WD AGO Form 53-55 shows he departed the United States on 16 June 1944 and arrived in England and subsequently the European-African-Middle Eastern Theater of Operations (EAMETO) on 29 June 1944.  He departed the EAMETO on 5 March 1946 and arrived back in the United States on 16 March 1946.  He completed 7 months and 11 days of continental service and 1 year, 9 months, and 1 day of foreign service.  He was honorably separated on 20 March 1946.

6.  Item 31 (Military Qualifications and Date) of the applicant’s WD AGO Form   53-55 shows the entry "None."

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

8.  Item 33 (Decorations and Citations) of the applicant’s WD AGO Form 53-55 shows he was awarded the Good Conduct Medal, the European-African-Middle Eastern Theater Ribbon, and the World War II Victory Medal.  Item 33 does not show award of the Purple Heart.

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

10.  Information from the Hospital Admissions Card created by the Office of the Surgeon General (OTSG) shows the applicant suffered a non-battle injury/wound to his forearm as a result of a rifle bullet on 2 November 1944 in the EAMETO.

11.  The applicant submitted several medical documents through his counsel as follows:

	a.  Form 52b, dated 2 November 1944, shows he suffered a gunshot wound to the right arm and right chest  and elbow when a fellow Soldier accidentally discharged his rifle.  He was treated with a dressing, tablets, and powder;

	b.  Supplemental Record, dated 2 November 1944, shows he suffered an accidental non-battle injury in the form of a  gunshot wound of the right arm and penetrating wound of the right chest while a fellow Soldier was cleaning his rifle;

	c.  Medical document, dated 2 November 1944, shows he suffered an accidental gunshot wound to his right arm and back in Germany and that he underwent local anesthesia and debridement on 4 November 1944; 





	d.  The 30th General Hospital Register Number 18220, dated 10 November 1944, shows he was admitted to that hospital with a diagnosis of a gunshot wound to his chin, right arm, and back.  Furthermore, a handwritten entry is made on this form that states "awarded PH per GO #3, HQ, 174th GH, dtd 23 Nov 44" indicating that the 174th General Hospital issued General Orders Number 3 on 23 November 1944 to award the applicant the Purple Heart.

	e.  Doctor notes, dated 16 November 1944, show he suffered a gunshot wound on 2 November 1944 in Germany.  The notes also show the applicant was "WIA" indicating that he was wounded in action; 

	f.  Form 52C, dated 22 November 1944, shows the applicant suffered a gunshot wound (rifle), perforating wound, to his right arm, chin, and back; accidently incurred at 0845 hours on 2 November 1944, near Stohlberg, Germany, when a fellow Soldier discharged his rifle.  This form also shows a foreign body 2x5 mm, in the right elbow, accidently incurred as a result of the same accident.  This form further shows an entry that the Purple Heart was awarded per General Orders Number 3, issued by Headquarters, 174th General Hospital, on 23 November 1944;

	g.  The 174th General Hospital Register Number 22, dated on what appears to be 16 November 1944, shows the following entries:

		(1)  the front page of this form shows the applicant suffered a gunshot wound (rifle), perforating wound, to his right arm, chin, and back; accidently incurred at 0845 hours on 2 November 1944, near Stohlberg, Germany.  It also shows he had a foreign body, 2x5 mm, in the right elbow, accidently incurred as a result of the same accident.  This form further shows a hand-written entry that the Purple Heart was awarded per General Orders Number 3, issued by Headquarters, 174th General Hospital, on 23 November 1944; and

		(2)  the back page of this form shows the applicant's progress.  An entry, dated 19 December 1944, shows that the applicant stated that he was walking back to his quarters on 2 November 1944 when another Soldier accidently shot him in his right arm.  The place was at the time under artillery fire and when he was brought into the house, he also had wounds of his right shoulder and chin.

	h.  Medical document, dated 19 December 1944, shows the following entries:





		(1)  the applicant was WIA (wounded in action) by shell fragments to his chin and right shoulder incurred due to enemy action in combat on 2 November 1944 near Stohlberg, Germany, as per his statement; 

		(2)  the applicant  suffered a rifle bullet wound to his right arm when another Soldier accidentally discharged his rifle; and

		(3)  the applicant had a foreign body –bullet fragment –incurred during the artillery shelling.

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 which he claims to have occurred as a result of enemy artillery shelling that occurred on 2 November 1944 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 medical evidence of record submitted by the applicant reflects three injuries:  rifle bullet wound to the arm, chin, and back; foreign body/bullet fragments to the right elbow; and penetrating wound to the chin and right shoulder. 

	a.  with respect to the gunshot injury on 2 November 1944, the evidence of record clearly shows that this injury was caused by the accidental discharge of another Soldier's rifle that injured the applicant's right arm, chin, and back, as shown on various medical records submitted by him.  He would not have qualified for an award of the Purple Heart for this injury.  The entry that Headquarters, 174th General Hospital, issued general orders to award him the Purple Heart for this injury appears to be in error; 

   b.  with respect to the foreign body, 2x5 mm, to his right elbow which, according to the applicant's statement, was caused by artillery shelling, there is conflicting evidence regarding the cause of this injury.  Nevertheless, the preponderance of evidence shows that this injury was also caused by the accidental rifle discharge that occurred on 2 November 1944.  Again, he would not have qualified for an award of the Purple Heart for this injury.  The entry that Headquarters, 174th General Hospital, issued general orders to award him the Purple Heart for this injury appears to be in error; and

	c.  with respect to the penetrating wound to the chin and right shoulder, the available evidence of record shows that the applicant suffered a non-battle injury to his right arm, chest, chin, and back, resulting from the accidental discharge of another Soldier's rifle.  However, the available medical evidence indicates that fragments from the same bullet also injured his elbow and/or his shoulder.  This could have very well happened while the place was under artillery fire.  However, there is no clear indication or conclusive evidence that the artillery shelling caused this injury.

4.  Notwithstanding the entries on some documents that general orders were issued by the hospital to award the applicant the Purple Heart, there is no conclusive evidence that this injury occurred as a result of 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 correcting the applicant's WD AGO Form 53-55 to show award of the Purple Heart.





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 to amend the decision of the ABCMR set forth in Docket Number AR2001060581, dated 29 November 2001.




      _______ _   _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)                                         AR20090004772



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ABCMR Record of Proceedings (cont)                                         AR20090004772



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