IN THE CASE OF:	  

		BOARD DATE:	  3 September 2009

		DOCKET NUMBER:  AR20090007887 


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, in effect, that he sustained an injury (concussion and loss of hearing) while a prisoner of war (POW) in Germany on 5 April 1945 from an air raid by the U.S. 8th Air Force.  He contends that when he returned to military control he was interrogated and he was told his injury resulted from "friendly fire."  He states that the law has changed since that time.    

3.  The applicant provides copies of his WD AGO Form 53-98 (Military Record and Report of Separation) for the periods ending 8 December 1945 and 15 July 1946; service personnel records; service medical records; a POW roster; a birth certificate; Army Retiring Board Proceedings; a Department of Veterans Affairs Rating Decision; an Enlisted Record; and a letter, dated 3 April 2009, from a Member of Congress in support of his 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 applicant's military records are not available 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 to conduct a fair and impartial review of this case.

3.  Having prior enlisted service, the applicant entered active duty on 
6 December 1943.  He served as a unit commander in the European Theater of Operations from 11 October 1944 to 15 May 1945.  

4.  On 7 September 1945, an Army Retiring Board found the applicant unfit for general military service but qualified for permanent limited duty.  The board recommended that the applicant be returned to duty in a permanent limited service status confined to the continental limits of the United States.  He was diagnosed with deafness, perceptive type, moderate, bilateral, incurred as a result of a bomb concussion on 5 April 1945 in Germany. 

5.  The applicant was discharged by reason of physical disability on 8 December 1945 in the rank of first lieutenant.

6.  The applicant's WD AGO Form 53-98 for the period ending 8 December 1945 does not show the Purple Heart as an authorized award.  Item 30 (Wounds Received in Action) on his WD AGO Form 53-98 shows the entry "None."

7.  There is no evidence in the available records that shows the applicant was awarded the Purple Heart or was wounded as a result of hostile action during World War II.

8.  The applicant entered active duty on 20 May 1946.

9.  A WD AGO Form 63 (Report of Physical Examination), dated 14 June 1946, states, in pertinent part, that the applicant reported he was captured by the Germans on 16 December 1944 and that he was exposed to considerable artillery fire without any marked effect on his hearing while a POW.  The form also states that on 5 April 1945 while en route from one POW camp to another 


the column was passing an ammunition dump when the ammunition dump was bombed by allied planes.  A five hundred pound bomb exploded approximately ten yards from the applicant. 

10.  On 15 July 1946, the applicant was released from active duty.

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained 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.  The regulation 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 contends he sustained an injury (concussion and loss of hearing) while a POW in Germany on 5 April 1945 when an ammunition dump was bombed by allied planes.  Even if the argument that the injury was incurred in the “heat of battle” was accepted, the criteria for award of the Purple Heart includes a requirement that the wound have required treatment by medical personnel and that the medical treatment must have been made a matter of official record.  

2.  It is acknowledged that it is likely the applicant would not have received medical treatment from the Germans even if he had been severely wounded and bleeding profusely and in a stationary camp.  

3.  In addition, there is no corroboration, such as statements from fellow prisoners of war, that the applicant's injury was the result of an air raid by the    U. S. Forces.  Regrettably, as there are no medical records which show the applicant was treated for wounds received on 5 April 1945 and there is no corroborating evidence, there is insufficient evidence on which to base award the Purple Heart at this time.



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.




      _______ _   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)                                         AR20090007887





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ABCMR Record of Proceedings (cont)                                         AR20090007887



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