IN THE CASE OF:	  

		BOARD DATE:	        4 AUGUST 2009

		DOCKET NUMBER:  AR20090005288 


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, in effect, that her deceased father, a former service member (FSM), be posthumously awarded the Purple Heart (PH).  

2.  The applicant states, in effect, the FSM sustained a wartime injury during an enemy action which was overlooked or improperly recorded.

3.  The applicant provides a self-authored letter, her birth certificate, the FSM's  WD AGO Form 53-55 (Enlisted Record and Report of Separation), Bronze Star Medal (BSM) orders, an honorable discharge certificate and certificate of military service on the FSM, the FSM's death certificate and funeral home bill, and the FSM's obituary in support of the 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 complete military record is not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the FSM's records were lost or destroyed in that fire.  However, there were sufficient documents on file for the Board to conduct a fair and impartial review of this case.  This case is being considered using a reconstructed record that primary consists of the FSM's WD AGO Form 53-55 and the documents provided by the applicant.

3.  The FSM's WD AGO Form 53-55 shows he enlisted in the Army and entered active duty on 22 January 1942.  He served with Company A, 242nd Engineer Battalion in the Pacific Theater of Operations (PTO) from 3 April 1944 through    7 November 1945, and first sergeant (1SG) is the highest rank he held while serving on active duty.  Item 31 (Military Qualifications) shows he earned the Marksman Marksmanship Qualification Badge with Rifle Bar, and item 32 (Battles and Campaigns) shows he participated in the Central Pacific, Bismarck Archipelago, Eastern Mandates, and Ryukyus campaigns of World War II (WWII).   

4.  Item 33 (Decorations and Citations) of the FSM's WD AGO Form 53-55 shows he earned the following awards during his active duty tenure:  Army Good Conduct Medal, Philippine Liberation Ribbon with 1 bronze service star, BSM, American Campaign Medal, Asiatic Pacific Campaign Medal with 5 bronze service stars, and WWII Victory Medal.  Item 34 (Wounds Received in Action) contains the entry "None."  

5.  The FSM's WD AGO Form 53-55 confirms the FSM was honorably separated on 4 December 1945, after completing a total of 3 years, 10 months, and 13 days of active military service.  The FSM authenticated the WD AGO Form 53-55 with his signature in item 56 (Signature of Member Being Separated) on 4 December 1945, the date of his separation.  

6.  The applicant provides a copy of Headquarters, 77th Infantry Division, General Orders Number 287, dated 18 August 1945, which awarded the FSM the BSM for his meritorious service in connection with military operations against the enemy while aboard a United States ship in vicinity of Kerama Retto, Ryukyus Islands, on the night of 2 April 1945.  It shows that after the ship was crash dived by an enemy plane and a fire started on the bridge, the FSM, although momentarily thrown to the deck and rendered unconscious, later organized a group of Army and Navy men to evacuate the severely wounded from the blaze, and then directed the placement of the water hoses on the bridge to extinguish the blaze.  The document gives no indication that he sustained an injury that required treatment by military medical personnel during this action.  

7.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to award a PH there must be evidence that a member was wounded or injured as a result of enemy action.  The wound or injury for which the PH is being awarded must have required treatment by a medical officer; this treatment must be supported by medical treatment records that were made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim that the FSM should have been awarded the PH and the supporting documents she provides have been carefully considered.  However, by regulation, in order to support award of the PH there must be evidence that the wound or injury for which the award is being made was received as a result of enemy action, that it required treatment by military medical personnel, and that a record of this treatment was made a matter of official record.  

2.  The BSM orders on the FSM provided by the applicant, while indicating the FSM was thrown to the deck and rendered unconscious, fails to confirm that he sustained a wound or injury as a result of this incident and/or that he required treatment from military medical personnel as a result of a wound or injury he sustained during this action.  Further, there are no other documents on file or provided by the applicant that show he ever received a wound or injury as a result of enemy action that required treatment by military medical personnel during his active duty tenure.  

3.  Further, item 34 of the FSM's WD AGO Form 53-55 contains the entry "None," which indicates he was never wounded in action.  In addition, there are no orders or other documents on file that indicate he was ever treated for a combat related wound while serving on active duty, or that show he was ever recommended for or awarded the PH by proper authority during his active duty tenure.  Therefore, absent any evidence confirming the FSM sustained a wound or injury as a result of enemy action that required treatment by military medical personnel, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  As a result, it would not be appropriate or serve the interest of all those who served during World War II and who faced similar circumstances to award the FSM the PH.  


4.  The applicant is advised that this action is based solely on the lack of sufficient documentation and in no way reflects a prejudicial or negative opinion regarding her claim.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of the FSM's service in arms.

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)                                         AR20090005288



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ABCMR Record of Proceedings (cont)                                         AR20090005288



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