IN THE CASE OF:	  

		BOARD DATE:	 20 October 2009 

		DOCKET NUMBER:  AR20090011468 


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 suffered a concussion injury due to mortar fire which resulted in the loss of hearing and an injury to his back during World War II (WWII).  These injuries have resulted in him being awarded a 100 percent disability rating.  He adds that at the time of the injuries medical help was not available or adequate and that no permanent record was made.  He also adds that he was not aware of the requirements for award of the Purple Heart. 

3.  The applicant provides a copy of an undated witness letter; a copy of his VA Form 21-4138 (Statement in Support of a Claim), dated 3 March 2009; and an internet article, dated 21 February 2009, stating the requirements for award of the Purple Heart, in support of his request.

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 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 applicant’s reconstructed records show he was inducted into the Army of the United States and entered active duty at Camp Robinson, AR, on 8 October 1944.  He was honorably discharged, on 29 May 1946, for the purpose of enlistment in the Regular Army (RA).  He held military occupational specialty (MOS) 776 (Radio Operator).

4.  The applicant’s WD AGO Form 53-55, dated 29 May 1946, shows he departed the United States, on 12 March 1945, and arrived in the Southwest Pacific Area (SWPA) on 13 April 1945.  He completed 5 months and 4 days of continental service and 1 year, 2 months, and 15 days of foreign service.

   a.  Item 31 (Military Qualifications and Date) shows he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-1) on 10 May 1946 and the Combat Infantryman Badge on 3 June 1945.  Item 32 (Battles and Campaigns) shows he participated in the Luzon and Philippine Islands campaigns during WWII; 

   b.  Item 33 (Decorations and Citations) shows he was awarded the World War II Victory Medal, the Asiatic-Pacific Theater Ribbon with one bronze service star, and the Philippine Liberation Ribbon with one bronze service star.  Item 33 does not show award of the Purple Heart;

   c.  Item 34 (Wounds Received in Action) shows the entry “NONE.”

5.  On 30 May 1946, the applicant enlisted in the RA and he served until he was honorably discharged on 26 May 1947.  His WD AGO Form 53-55 shows he completed 4 months and 15 days of continental service and 7 months and 
12 days of foreign service.  It also shows the following: 

   a.  Item 33 shows he was awarded the Good Conduct Medal and the Army of Occupation Medal (Japan).  Item 33 does not show award of the Purple Heart; and

   b.  Item 34 (Wounds Received in Action) shows the entry “NONE.”

6.  The applicant submitted three documents in support of his request as follows:

	a.  in a VA Form 21-4138, dated 3 March 2009, the applicant states that on or about 1 August 1945, about 20 men were sent on a patrol to locate and capture an enemy General Officer (GO) and his troops.  About 4 days later, the enemy made contact through small arms fire and explosions.  The applicant was the browning automatic rifleman on this patrol.  He was blown into the air as a result of an explosion and landed on his back.  He sustained a severe injury and the commander carried him for 4 days until he was subsequently flown to a hospital at Tacloban, Luzon.  The applicant concludes that he did not know he was entitled to an award of the Purple Heart.  He also states he still has pain after he had two back surgeries;

	b.  in an undated statement, a witness indicated he served with the 1st Platoon, Company B, 128th Regiment, 32nd Infantry Division during WWII and his job was that of a first scout or point man.  He adds that on or about 1 August 1945, he was sent behind the line to locate an enemy GO and his troops.  Upon sighting the enemy a fire fight broke out.  He ran out of ammunition and saw two men were injured, one of whom was the applicant.  He and the others decided to get out and they carried the injured men with them;

	c.  an internet printout, dated 21 February 2009, describes the criteria for award of the Purple Heart with two sentences "A physical legion is not required" and "enemy generated explosion" is highlighted.

7.  The Purple Heart was established by General George Washington at Newburgh, New York, on 7 August 1782 during the Revolutionary War.  It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action.

8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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, and the medical treatment must have been made a matter of official record.

9.  This regulation further states, in pertinent part, that a wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions listed above.  A physical lesion is not required, however, the wound for which the award is made must have required treatment by medical personnel and records of medical treatment for wounds or injuries received in action 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:

	a.  examples of enemy-related injuries which clearly justify award of the Purple Heart are injury caused by enemy bullet, shrapnel, or other projectiles created by enemy action, injury caused by enemy placed mine or trap, injury caused by enemy released chemical, biological, or nuclear agent, injury caused by vehicle or aircraft accident resulting from enemy fire, concussion injuries caused as a result of enemy generated explosions; and 

	b.  examples of injuries or wounds which clearly do not justify award of the Purple Heart are frostbite or trench foot injuries, heat stroke, food poisoning not caused by enemy agents, chemical, biological, or nuclear agents not released by the enemy, battle fatigue, disease not directly caused by enemy agents, accidents to include explosives, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action, self-inflicted wounds except when in the heat of battle and not involving gross negligence, post traumatic stress disorders, and/or jump injuries not caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be awarded the Purple Heart due to an injury that he sustained to his back and due to the loss of hearing caused by an explosion in August 1945 and was carefully considered.  However, there is insufficient evidence to grant the Purple Heart in this case.

2.  The applicant is correct in that an enemy-generated explosion that leads to an injury meets the criteria for award of the Purple Heart and that a physical lesion is not required; however, 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 the sole justification for the award.  

3.  Additionally, the wound for which the award is made must have required treatment by medical personnel and records of medical treatment for the wounds or injuries received in action must have been made a matter of official record.  In this case, the applicant's sincerity is not in question; however, there is insufficient evidence in his reconstructed records that shows he was wounded or injured as a result of hostile action or treated for such wounds.  

4.  The witness recollections of events were considered.  However, chronicles of events, which were prepared and/or are submitted more than 50 years after the fact, do not by themselves conclusively prove the applicant was wounded or injured as a result of hostile action.  Furthermore, the granting of a service-connected disability to a Soldier (by what appears to be the Department of Veterans Affairs) is insufficient to justify an award of the Purple Heart, not all service-connected disabilities are the result of hostile action.

5.  Regrettably, absent evidence which conclusively shows the applicant sustained wounds or injuries as a result of hostile action, that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is insufficient basis for awarding the Purple Heart to the applicant in this case.

BOARD VOTE:

____x____  ___x_____  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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)                                         AR20090011468



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090011468



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1