IN THE CASE OF:	  

		BOARD DATE:	  19 November 2009

		DOCKET NUMBER:  AR20090010365 


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 was wounded during a friendly fire incident in World War II and that he is entitled to award of the Purple Heart based on the new criteria.  

3.  The applicant provides in support of his application copies of his honorable discharge certificate, a WD AGO Form 53-55 (Enlisted Record and Report of Separation), letters from chaplains, a Veterans Administration (VA) Board of Veterans' Appeals statement, and an information sheet from the Department of the Army, Office of the Surgeon General.

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, including the applicant's WD AGO Form 53-55 and documents provided by the applicant.  

3.  The available evidence shows that the applicant was inducted into the Army of the United States on 6 July 1943 and entered active service on 27 July 1943.  He completed basic combat training, advanced individual training, and was subsequently awarded military occupational specialty (MOS) 607 (Light Mortar Crewman).

4.  The applicant served in the European-African-Middle Eastern Theater of Operations (EAMETO) from 8 December 1944 to on or about 8 June 1945.  He served in three campaigns:  the Rhineland Campaign (15 September 1944 to 
21 March 1945); the Ardennes-Alsace Campaign (16 December 1944 to           25 January 1945); and the Central Europe Campaign (22 March 1945 to 11 May 1945). 

5.  A review of the Office of the Surgeon General Hospital Admission Cards for the Years 1942 to 1945 shows that the applicant was an Infantryman serving in the EAMETO when he was admitted to a general hospital on 28 March 1945.  His injury was characterized as a non-battle injury.  The causative agent for the wound was a bullet, pistol or revolver, and the circumstances were recorded as "injured handling firearms, ammunition, etc., on post or in camp (cleaning gun, on range, etc., by patient or others)."  The diagnosis was a wound to the abdomen, abdominal wall and pelvis to include the abdominal thoracic region.  Per this report, his injury was found to be in the Line of Duty.  The final disposition was discharge with disability. 

6.  As evidence to support his application, the applicant provided a letter from a Catholic chaplain stationed with the 189th General Hospital at Army Post 
Office 513.  This letter was written to the applicant's parents stating the chaplain had visited with the applicant in the hospital, that he had abdominal wounds, and that he was resting comfortably.  A second letter from the Chaplains' Branch at the Army Service Forces, Boston Port of Embarkation at Camp Myles Standish in MA states the applicant had safely arrived in the United States.  In addition, the applicant noted on this letter that he hoped to go to a Jersey general hospital at Fort Dix or near Atlantic City. 

7.  On 21 March 1947, the VA Board of Veterans' Appeals recorded the applicant's appeal to indicate he requested an increased rating for the residual effects of multiple gunshot wounds.  The material evidence presented to the VA shows that the applicant was wounded on 28 March 1945 by an accidental discharge from a U.S. Army Soldier's pistol.

8.  On 19 October 1945, the applicant was discharged.  He was issued a Certificate of Disability in accordance with Army Regulation 615-361 (Personnel Separations).  Item 33 (Decorations and Citations) of the applicant's WD AGO Form 53-55 does not show he was awarded the Purple Heart.  Item 34 (Wounds Received in Action) contains the entry "NONE RECORDED."

9.  Army Regulation 600-45 (Decorations), then in effect, which governed the award of Army decorations until 23 August 1951, stated the Purple Heart was awarded to citizens of the United States serving with the Army, who are wounded in action against an enemy of the United States, or as a direct result of an act of such enemy, provided such wound necessitated treatment by a medical officer.  This regulation stated that for the purpose of considering an award of the Purple Heart, a “wound” is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for wounds 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.  An example of an injury which does not justify award of the Purple Heart are accidents to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action. 

11.  In the Department of Defense Appropriations Act for fiscal year 1994 was an amendment to the rules governing award of the Purple Heart.  While the original rules established that the Purple Heart would be awarded to individuals killed or wounded as a result of hostile action the amendment enabled the Secretaries of each department to award the Purple Heart to members of the armed forces who were killed or wounded in action by weapon fire, while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States.  This ruling, in effect, granted the service Secretaries the authority to award the Purple Heart to individuals directly engaged in armed conflict that were killed or wounded as a result of "friendly fire."

12.  Army Regulation 600-8-22 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 that he is entitled to award of the Purple Heart based on the new rules that award the Purple Heart to Soldiers who are wounded by "friendly fire." 

2.  Based on the evidence of record, the applicant was not wounded by friendly fire while engaged in direct battle with enemy forces.  The hospital record shows that an accidental firing of another Soldier's pistol caused the applicant’s abdominal wounds.  His VA appeal, which he submitted as evidence, corroborates the hospital report that he was wounded when a fellow Soldier accidently discharged a pistol.    

3.  Clearly, the applicant's record does not show that he was wounded by friendly fire while engaged in combat operations.  Therefore, he is not entitled to award of the Purple Heart.

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 award of the Purple Heart. 

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)                                         AR20090010365



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090010365



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1