IN THE CASE OF:	

		BOARD DATE:	  09 March 2010

		DOCKET NUMBER:  AR20090012628 


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 should be awarded the Purple Heart for a wound sustained as the result of friendly fire, on 24 July 1944, during the Battle of St. Lo, France.  He notes that, "eligibility has been expanded to include wounds from friendly fire."  He states that he has proof in the form of a grant of service connection by the Department of Veterans Affairs (VA) on 3 November 1945 and a statement from Dr. Shaw explaining the situation at that time. 

3.  The applicant provides, in support of his application, copies of his WD AGO Form 53-55 (Honorable Discharge), WD AGO Form 100 (Separation Qualification Record), a 3 November 1945 VA letter for Award of Disability Compensation, and an original handwritten letter from a Dr. Shaw that was notarized on 30 June 2006. 

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.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, sufficient information is available to render a full and impartial review.

3.  The applicant was inducted on 23 June 1943 and entered active duty on        7 July 1943.  He completed training as a light vehicle driver and was assigned to a mortar battalion.  He served in Europe during the Normandy, Northern France, Ardennes-Alsace, Rhineland, and Central Europe campaigns and returned to the United States on 3 August 1945.  

4.  A copy of a medical record page from his service record book shows that, on 7 September 1945, while home on leave, the applicant sprained his right ankle.   

5.  His WD AGO Form 33 (Report of Physical Examination of Enlisted Personnel Prior to discharge, Release from Active Duty or Retirement) shows in item 11 (List all significant diseases, wounds and injuries) "A) sprained right ankle in Aug 45.  Still painful at times."  

6.  He was separated, on 14 October 1945, with an honorable discharge.  His authorized awards are listed as the European-African-Middle Eastern Campaign Medal and the Good Conduct Medal.

7.  Dr. Shaw reported that he and the applicant were in the same platoon.  An aerial bombardment directed at the opposing German lines fell short and wounded many American troops.  The applicant sustained wounds to his forehead and his right ankle.  He was treated by the platoon medic.

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 by medical personnel, and the medical treatment must have been made a matter of official record.  

9.   The regulation also provides 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.

10.  A 3 November 1945 VA award letter authorized service connected compensation for "swelling over the lateral malleolus [the rounded bony protuberances on each side of the ankle] with pain and tenderness, right ankle."

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that he should be awarded the Purple Heart for a wound sustained as the result of friendly fire, on 24 July 1944.

2.  There is no evidence of record to show the applicant was treated for a wound that would have entitled him to the Purple Heart.  The medical record entry shows the ankle injury to have been an accident.  The fact that neither the medical record nor the report of the separation physical examination recorded any reference to a preexisting battle injury to the right ankle tends to reinforce the conclusion that there was none. 

3.  Although changes to the award regulation have expanded the description of qualifying circumstances, the rules did not change.  The Purple Heart has historically been authorized for Soldiers who were wounded while in action against an enemy regardless of which side fired the shot.

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 this requirement.

5.  There is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X___  ____X___  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

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.




      _______ _   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)                                         AR20090012628





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ABCMR Record of Proceedings (cont)                                         AR20090012628



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