IN THE CASE OF:
BOARD DATE: 9 SEPTEMBER 2009
DOCKET NUMBER: AR20090006128
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 correction of his WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) to remove the entry "(Claim)" from item 33 (Decorations and Citations).
2. The applicant states that the entry "Purple Heart Medal (Claim)" on his WD AGO Form 53-55 should be changed to read "Purple Heart." He contends that he was wounded by friendly fire. One of his new recruits was carrying a rifle like a pistol when a bullet he fired during combat ricocheted from the floor and hit him in his leg. The new recruit was killed in combat the following week.
3. The applicant provides, in support of his application, a copy of his WD AGO Form 53-55.
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 are sufficient documents available for the Board to conduct a fair and impartial review of this case.
3. The applicant's WD AGO Form 53-55 shows:
a. that on 10 March 1943, the applicant was inducted into the Army of the United States;
b. that he entered active duty on 17 March 1943 and subsequently completed his initial training;
c. that he participated in the Rhineland and Central Europe campaigns;
d. that his awards included the American Campaign Medal, European-African-Middle Eastern Theater Ribbon with two bronze service stars, and the Army Good Conduct Medal;
e. that there is a "Purple Heart Medal (Claim)" entry in item 33;
f. that there is a "30 March 1945 Germany" entry in item 34 (Wounds Received in Action);
g. that he served in the European theater of operations from 25 September 1944 to 2 July 1945; and
h. that he was separated on 23 January 1946.
4. Information from the hospital admission cards of 1945, as provided by the Office of the Surgeon General, show that the applicant was admitted for medical treatment of a non-battle bullet injury to his leg on 29 March 1945.
5. 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 the 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 a medical officer, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his WD AGO Form 53-55 should be corrected to remove the entry "(Claim)" from item 33.
2. The available evidence is contradictory. The applicant states he was wounded during combat; however, the hospital admission record states that his wound was a non-battle injury. The entry in item 34 of his WD AGO Form 53-55 indicates he was wounded in action, but the award entry on this form seems to show only a "claim" for award of the Purple Heart.
3. The available evidence is incomplete and is not sufficient for making a determination in this case. Therefore, the applicant's records should remain unchanged. Should the applicant have or be able to obtain more conclusive evidence he may submit another application for consideration.
4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
5. In view of the foregoing, there is no basis for granting the applicant's request.
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) AR20090006128
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20090006128
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