IN THE CASE OF:	  

		BOARD DATE:	  24 November 2009

		DOCKET NUMBER:  AR20090011156 


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 that his brother, a deceased former service member (FSM), be awarded the Purple Heart.

2.  The applicant states, in effect, that his brother's WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) does not reflect the award of the Purple Heart or wounds received in action.  However, his WD AGO Form 38 (Report of Physical Examination Prior to Discharge, Release from Active Duty, or Retirement) reflects that he had a shrapnel wound to the forehead in March 1945 in Germany.  Accordingly, his family believes that the FSM should have been awarded the Purple Heart.

3.  The applicant provides copies of the FSM's WD AGO Form 53-55, WD AGO Form 38, two pages from the Soldier Qualification Card, a copy of the FSM's death certificate, and a copy of the applicant's birth certificate.

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 FSM’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 FSM’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 FSM was born on 13 October 1919 and was inducted into the Army of the United States at Fort Snelling, Minnesota, on 7 September 1944.  He successfully completed his training and departed for the European theater of operations (ETO) on 31 January 1945.  He was initially assigned to an infantry company of the 291st Infantry Regiment for duty as a rifleman.

4.  On 1 March 1945, he was reassigned to Headquarters Company, 3d Battalion, 291st Infantry Regiment, for duty as a lineman.  He was awarded the Combat Infantryman Badge on 18 April 1945.

5.  He participated in two campaigns and was promoted to the rank of technician fifth class on 25 June 1946.  He departed the ETO on 8 July 1946 and was transferred to Fort Sheridan, Illinois, where he was honorably discharged on 23 July 1946.  He had served 1 year, 10 months, and 17 days of total active service and his WD AGO Form 53-55 issued at the time of his discharge indicates that he was awarded the Army of Occupation Medal (Germany), the World War II Victory Medal, the Army Good Conduct Medal, and the European-African-Middle Eastern Theater Ribbon with two bronze service stars.  Item 34 (Wounds Received in Action) of that form contains the entry "None."  The FSM authenticated that form with his signature and right thumb print.

6.  The WD AGO Form 38 provided by the applicant shows that on 22 July 1946 the medical examining officer indicated in the Statement and Medical History of Examinee section of the form that the FSM reported a shrapnel wound to the forehead incurred on March 1945 in Germany.  The FSM also indicated that he sprained his back and was treated in a dispensary in France in 1945.  The examining physician indicated that the neurological diagnosis was "non-residual – head injury."

7.  The FSM was killed in an airplane crash on 5 September 1948 in Lake George Stearns, Minnesota.

8.  A review of the available records failed to show any evidence to indicate that the FSM was wounded as a result of enemy action, that he was treated by medical personnel, and that the treatment was made a matter of record.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant’s claim in 1946 that the FSM received a shrapnel wound to the forehead in March 1945 in Germany is not in doubt, he made no mention of whether the FSM was treated for the wound or the circumstances surrounding the wound.

2.  Therefore, without official records to substantiate that the FSM’s shrapnel wound was the result of enemy action and that he was treated for the wound, there appears to be no basis to award him the Purple Heart at this time.

3.  Although it is unfortunate that the FSM's records were destroyed in 1973, without official documents to establish his entitlement to the Purple Heart 60+ years after the fact, there is no basis to grant the applicant's request.

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 his late brother in service to the United States during World War II.  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)                                         AR20090011156



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ABCMR Record of Proceedings (cont)                                         AR20090011156



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