IN THE CASE OF:	

		BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090011587 


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 that he served consecutively in New Caledonia, Australia, Oral Bay, and New Guinea.  He suffered burns to his arms from white phosphorous on the Island of Luzon in an area between Lingayen Bay and Manila, Philippines, and was sent to Leyte for treatment.  He was then shipped to Luzon, Oral Bay, and New Guinea, and was on a hospital ship for 30 days.  He was further sent to San Diego, CA, and to Wakeman General Hospital at Camp Atterbury, IN.  While there, he was given a 45-day pass and was ultimately discharged at Fort Meade, MD, on 25 April 1946.  He also states that at the time of his injury, the Purple Heart was not given because of friendly fire.

3.  The applicant provides a copy of his WD AGO Form 100 (Separation Qualification Record), dated 25 April 1946, 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 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 applicant's WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) shows he was inducted into the Army of the United States on 5 January 1944 and entered active service in Huntington, WV, on 26 January 1944.  This form also shows that at the time of separation, the applicant held military occupational specialty 932 (Special Vehicle Operator) and was assigned to Company A, 1st Infantry Regiment, 6th Division.

4.  The applicant's WD AGO Form 53-55 shows he departed the continental United States on 20 July 1944 and arrived in New Guinea (Pacific theater of operations) on 16 August 1944.  He departed the Pacific theater of operations on 25 August 1945 and arrived back in the continental United States on 20 September 1945.  He completed 1 year and 29 days of continental service and 1 year, 2 months, and 1 day of foreign service.  He was honorably separated on 25 April 1946.

5.  Item 31 (Military Qualifications and Date) of the applicant's WD AGO 
Form 53-55 shows he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar (M-1) and the Combat Infantryman Badge.

6.  Item 32 (Battles and Campaigns) of the applicant's WD AGO Form 53-55 shows he participated in the New Guinea and Southern Philippines campaigns during World War II.

7.  Item 33 (Decorations and Citations) of the applicant's WD AGO Form 53-55 shows he was awarded the Army Good Conduct Medal, the American Theater Ribbon, the Asiatic-Pacific Theater Ribbon, the Philippine Liberation Ribbon with one bronze service star, and the World War II Victory Medal.  Item 33 does not show award of the Purple Heart.

8.  Item 34 (Wounds Received in Action) of the applicant's WD AGO Form 53-55 contains the entry "None."

9.  The applicant's reconstructed records contain several medical documents throughout his military service that show he was treated for routine illnesses, including food poisoning, dermatitis, stomach trouble, abdominal pain, and anxiety.  However, there is no indication that he suffered a wound/injury resulting from enemy or friendly action or that he was treated for any wounds/injuries.

10.  The Purple Heart was established by General George Washington at Newburgh, NY, on 7 August 1782 during the Revolutionary War.  It was reestablished by the President of the United States per WD 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.

11.  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.  Additionally, this regulation 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 his records should be corrected to show award of the Purple Heart.

2.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria.  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 the award.  Currently, this award may also be awarded 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.

3.  There is no evidence in the applicant's available service or medical records which conclusively shows he suffered a wound/injury from hostile action, friendly fire, or that he was treated for such injury.  Regrettably, absent evidence which conclusively shows that the applicant sustained wounds or injuries as a result of hostile action or friendly fire in the heat of battle, 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 applicant 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)                                         AR20090011587



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ABCMR Record of Proceedings (cont)                                         AR20090011587



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