BOARD DATE:	  March 4, 2010

		DOCKET NUMBER:  AR20090013242 


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, in effect, award of the Purple Heart (PH).

2.  The applicant states, in effect, that he was wounded when the ship he was on was torpedoed on 24 December 1944.  He indicates that while moving from the torpedoed ship to the ship retrieving survivors, his foot became snagged as the ships came together and he was injured.  He claims that when pulled to safety, he was given first aid by the ship's crew.

3.  The applicant provides a self-authored statement, discharge certificate, 
WD AGO Form 53-55 (Enlisted Record and Report of Separation) and WD AGO Form 100 (Separation Qualification Record) in support of his application.

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 (NPRC) in 1973.  It is believed his records were lost or destroyed in that fire.  This case is being considered using the NPRC reconstructed record and the evidence the applicant provides which primarily consists of his WD AGO Form 53-55 and WD AGO Form 100.

3.  The applicant’s WD AGO Form 53-55 shows he was inducted into the Army of the United States and he entered active duty on 23 November 1942.  He continued to serve until he was honorably discharged on 26 March 1946.  It also shows he held military occupational specialty (MOS) 301 (Special Agent) and he served in the European Theater of Operations (ETO) from 26 November 1944 until 12 March 1946.

4.  Item 33 (Decorations and Awards) of the applicant's WD AGO Form 53-55 shows that during his active duty tenure he earned the Army Good Conduct Medal, World War II Victory Medal, American Service Medal, and European- African-Middle Eastern Medal.  The WD AGO Form 53-55 also shows he earned the Army Lapel Button.  The PH is not included in the list of awards contained in item 33.

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

6.  There are no documents in the NPRC file that indicate the applicant was ever recommended for or awarded the PH by proper authority while serving on active duty.  There are also no medical treatment records or hospital reports on file that indicate he was ever treated for a combat-related wound or injury during his active duty tenure.

7.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to award a PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that the wound was treated by medical personnel, and a record of this medical treatment must have been made a matter of official record.

8.  Army Regulation 600-8-22 also states, when contemplating an award of the Purple Heart, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the PH was carefully considered.  However, by regulation, in order to support award of the PH, there must be evidence that the wound for which the award is being made was received as a result of enemy action, that it required treatment by military medical personnel, and a record of this treatment must have been made a matter of official record.

2.  The available information in the NPRC file and the independent documentation submitted by the applicant fails to corroborate the applicant’s claim that he was wounded in action during World War II.  In addition, the available information fails to indicate he was ever wounded in action, or treated for a combat related wound or injury by military medical personnel; and there is no indication that he was ever recommended for or awarded the PH by proper authority while serving on active duty.  

3.  Absent any documentary evidence corroborating the applicant's claim, or that shows he was wounded in action or treated for a combat related wound while serving on active duty during World War II, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  

4.  In addition, the applicant has stated that he was injured not while he was on the torpedoed ship but while he was moving from the torpedoed ship to the ship retrieving survivors and his foot became snagged as the ships came together.  Therefore, the evidence does not show that his injury was caused by the enemy to a sufficient degree as to warrant award of the Purple Heart.

5.  The applicant and all others concerned should know that the decision regarding award of the PH 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.

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)                                         AR20090013242



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ABCMR Record of Proceedings (cont)                                         AR20090013242



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