IN THE CASE OF:	  

		BOARD DATE:	  3 November 2009

		DOCKET NUMBER:  AR20090007956 


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 military records to show award of the Purple Heart.

2.  The applicant states, in effect, that he injured his knee after a kamikaze plane struck his ship on 22 November 1944.  The applicant states, "I was on the bow of the ship when the kamikaze plane hit the superstructure.  He had not released his bomb.  It threw me back.  My leg was injured at that time.  I got up.  Everybody was being evacuated to land.  We were placed in a cargo net to be moved on a landing barge.  As the cargo was lifted it came back and hit the USS Nelson.  This slammed my leg into the side of the ship injuring it again.  I did not complain.  About 10 days later it was swollen and I was treated.  I was taken to a hospital ship to be sent home."

3.  The applicant provides his WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) with the period ending 13 November 1945 and a 7 page Department of Veterans Affairs (VA) Appeal, dated 14 November 2008.

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, this case is being considered using reconstructed records, which primarily consist of the applicant’s WD AGO Form 53-55 and a VA Appeal, dated 14 November 2008.

3.  The applicant's WD AGO Form 53-55 with the ending period 13 November 1945 shows he was inducted into the Army of the United States and entered active duty on 17 October 1942.  On 30 April 1943, he departed the United States for duty in the Asiatic Pacific Theater of Operations (APTO).  He arrived in the APTO on 5 June 1943.

4.  The applicant departed the APTO on 29 June 1945.  He was honorably discharged on 13 November 1945.

5.  The applicant's WD AGO Form 53-55 with the period ending 13 November 1945 does not show award of the Purple Heart.  Item 34 (Wounds Received in Action) contains the entry "None."

6.  There are no general orders available that show the applicant was awarded the Purple Heart.

7.  The applicant provided a VA Appeal, dated 14 November 2008.  In this appeal the VA reopened the applicant's claim for service connection for hearing loss.  The Appeal Board granted the applicant's claim based on a statement he provided as new evidence describing his exposure to a kamikaze attack aboard the USS Nelson in November 1944.  The applicant pointed out that he experienced hearing loss due to the explosion as well as an injury to his knee. 




8.  Army Regulation 600-8-22 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.  When contemplating an award of this decoration, the key issue that commanders must take into consideration 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to award of the Purple Heart for a leg injury he received while in the APTO was carefully considered.  It is clear that kamikaze pilots hurled their planes at many sea vessels during the war and the Board does not dispute that the applicant's vessel was hit by a kamikaze pilot's plane. 

2. However, there is no evidence in the available records and the applicant has not provided evidence that shows he received a leg injury that was a result of hostile action.  Unfortunately, the VA Appeal the applicant provided that indicates that he submitted a statement to the VA Board that he injured his knee from a kamikaze attack on while at sea alone is insufficient evidence to show he is authorized the award.  In view of the foregoing, there is insufficient evidence that would warrant granting the applicant's request for award of the Purple Heart 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 him 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)                                         AR20090007956





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ABCMR Record of Proceedings (cont)                                         AR20090007956



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