DOCKET NUMBER:  AR20090004882 


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 suffered a hearing loss from combat injuries during artillery fire that struck the building he was in.  He served in combat and was seriously injured during the course of combat.

3.  The applicant provides a copy of his WD AGO Form 53-55 (Enlisted Record and Report of Separation), dated 23 October 1945; a copy of his Honorable Discharge Certificate, dated 23 October 1945; a copy of his WD AGO Form 100 (Separation Qualification Record), dated 23 October 1945; a copy of a Veterans Administration disability compensation letter, dated 30 January 1989; a copy of an undated letter and a photograph of himself; a copy of an extract of a book titled, History of the 441st AAA [Anti-Aircraft Artillery] Battalion; an undated newspaper article; and a photograph of several ribbons/medals in support of his request.

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 Kalamazoo, MI, on 28 May 1942. 
This form also shows that at the time of his separation, the applicant held military occupational specialty 405 (Clerk Typist) and was assigned to Headquarters Battery, 441st AAA (Automatic Weapons) Battalion.

4.  The applicant’s WD AGO Form 53-55 shows he departed the United States on 8 June 1943 and arrived in Africa (European-African-Middle Eastern (EAME) theater of operations) on 22 June 1943.  He departed the EAME theater on 10 October 1945 and arrived back in the United States on 18 October 1945.  He completed 1 year and 15 days of continental service and 2 years, 4 months, and 11 days of foreign service.  He was honorably separated on 23 October 1945.

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

6.  Item 32 (Battles and Campaigns) of the applicant’s WD AGO Form 53-55 shows he participated in the Sicily, Naples-Foggia, Rome-Arno, Southern France, Rhineland, and Central Europe 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 European-African-Middle Eastern Campaign Medal with bronze arrowhead, the Good Conduct Medal, the Distinguished Unit Badge, and the French Croix de Guerre with Palm (Fourragere) [French unit citation].  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 submitted a copy of his Veterans Administration disability compensation letter, dated 30 January 1989, which shows he was awarded a 100-percent disability compensation for impaired hearing.

10.  The applicant submitted an extract of a book titled, History of the 441st AAA Battalion, in which the author describes the 441st AAA Battalion's actions during the Anzio landing.

11.  In an undated letter that also contains a picture of himself, the applicant states that the picture he provides is of him standing beside his foxhole in Anzio and that the building on his left was destroyed by enemy artillery fire.  He adds that two service members pulled him out of the rubble and took him to the nearest aid station for treatment.  He remained "stone deaf" for 5 days and the medics told the two service members that there was nothing they could do to help him.

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, 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 ear caused by artillery bombardment near his foxhole in 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 comrade’s personal chronicles and recollection of events were noted.  However, chronicles of events which were prepared and/or are submitted more than 60 years after the fact do not by themselves conclusively prove the applicant was wounded or injured as a result of hostile action.  There is no evidence in his reconstructed records that shows he was wounded or injured as a result of hostile action or treated for such wounds.  In addition, the applicant himself stated that, although he was taken to an aid station for treatment, the medics said that there was nothing they could do to help the applicant.  Therefore, it appears he did not receive medical treatment, one of the requirements for award of the Purple Heart.  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 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.



      ___________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)                                         AR20090004882



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ABCMR Record of Proceedings (cont)                                         AR20090004882



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