IN THE CASE OF:	

		BOARD DATE:	23 July 2009    

		DOCKET NUMBER:  AR20090010995 


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 the award of the Purple Heart for his father, a service member (SM) during World War II (WWII).

2.  The applicant states his father was wounded during the war and he received the Purple Heart.  The applicant states the award was not entered in his father’s official military record and he lost the medal.

3.  The applicant provides, in support of his application, the SM's Certification of Military Service, the SM's Honorable Discharge Certificate, a two page excerpt from the SM's diary, a map of the battle of Sidi Bou Zid, a photograph, and a Power of Attorney.

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 SM’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 were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.  

3.  The SM's WD AGO Form 53-55 (Enlisted Record and Report of Separation, Honorable Discharge), dated 29 August 1945, shows he enlisted in the Army National Guard on 9 February 1941 and he entered active duty on 10 February 1941.  The SM arrived in the European-African Theater of Operations on 2 March 1942.    

4.  The National Archives World War II Prisoners of War (POW) Data File, 12/7/1941 - 11/19/1946, lists the SM as having been captured on 17 February 1943 in the North African Theater: Tunisia.  The detaining power was Germany.  The data file shows the SM was returned to military control, liberated, or repatriated on 9 June 1945.

5.  On 29 August 1945, the SM was discharged by reason of demobilization.  He had completed 4 years, 6 months, and 20 days of active service that was characterized as honorable.

6.  Item 33 (Decorations and Citations) of the SM's WD AGO Form 53-55 does not contain an entry for the Purple Heart.

7.  Item 34 (Wounds Received in Action) of the SM’s WD AGO Form 53-55 contains the entry "None."

8.  The SM's service medical records were not available for review.

9.  In his journal the SM describes being wounded by a sniper's bullet that hit a rock and lodged between him and a rock.  He was taken to a first aid station; he was treated and stayed overnight.

10.  The applicant sent an electronic mail message (email), dated 29 June 2009, that provided a chronological list of events that occurred on 17 February 1943 when the SM states he was wounded.  According to this email, the SM was assigned to the 168th Infantry Band and he was hit by a Nazi sniper's bullet.

11.  The applicant sent an email, dated 14 July 2009, that contained two pages from a publication entitled "The History and Contribution to American Democracy of Volunteer 'Citizen Soldiers' of Southwest Iowa."  The two pages document the contributions the Soldiers of Iowa made during WWII.  The SM is listed as having been a POW.  However, the list does not show the SM as having been wounded by enemy action.

12.  The applicant provided an additional email, dated 14 July 2009, that contained two pages from a book entitled "Army at Dawn."  These pages provide information surrounding the battles in Tunisia and specifically at Sidi Bou Zid.  However, there is no mention of the SM having been wounded by enemy action.

13.  Army Regulation 600-45 (Decorations), then in effect, which governed the award of Army decorations until 23 August 1951 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant has submitted entries from the SM's diary and in depth excerpts from publications concerning the SM's unit's involvement during WWII in Tunisia.  However, none of the publications provide any evidence that show the SM was wounded or treated for wounds resulting from hostile action.

2.  The SM's diary contains entries describing the action during which he was wounded.  However, there are no corroborating documents or other evidence to show he was wounded or treated for wounds resulting from hostile action.  

3.  Item 34 of the SM’s WD AGO Form 53-55 does not indicate he received any wounds in action and his service medical records were not available for review.  Therefore, in the absence of military records which show the SM was wounded or treated for wounds resulting from hostile action, there is insufficient evidence upon which to base 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 the SM in service to our Nation.  The SM 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)                                         AR20090010995



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ABCMR Record of Proceedings (cont)                                         AR20090010995



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