IN THE CASE OF:	  

		BOARD DATE:	  27 January 2010

		DOCKET NUMBER:  AR20090013616 


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) 2nd Oak Leaf Cluster (3rd Award).

2.  The applicant states, in effect, he was wounded in action three times during World War II (WWII) and his official record does not reflect his injuries.  He indicates he is eligible for the PH based on his wounds and while he did not seek the award because of the injuries suffered by others around him, he now understands the importance of the award.

3.  The applicant provides two self-authored statements with documents identified in these statements 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 applicant’s WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) and the other documents he provided.

3.  The applicant’s WD AGO Form 53-55 shows he was inducted into the Army of the United States on 13 May 1944 and he entered active duty on 18 May 1944.  It also shows he held military occupational specialty (MOS) 502 (First Sergeant) and he served in the European Theater of Operations (ETO) from 26 October 1944 until his return to the United States on 6 May 1946.  It further indicates that he was credited with participating in the Ardennes, Rhineland, and Central Europe campaigns of WWII.

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 European-African-Middle Eastern Campaign Medal with 3 bronze service stars, Army Good Conduct Medal, WWII Victory Medal, and the Army Occupation Medal with Germany Clasp.  The PH is not included in item 33 and item 34 (Wounds Received in Action) contains the entry “None."

5.  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.

6.  The applicant provides a self-authored statement that indicates a tree limb fell across his back and an object hit his leg following a mortar barrage that came in among the trees during the Battle of the Bulge in WWII.  He also states that following the medical treatment at the field hospital, he denied additional treatment because the hospital was on the move and overrun with the injured.  This statement is signed by the applicant and another individual who witnessed the events stated by the applicant.

7.  The applicant provides a second statement in which he indicates he was wounded a second time in Ettelbruck, Belgium, and a third time in Kassel, Germany.  He also indicates he received medical treatment for these two 
wounds.  He also provides multiple news articles published post WWII and other document extracts that detail events of WWII and indicate, in part, that the applicant was wounded three times.

8.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show he was wounded in action three times during WWII and he should be awarded the PH 2nd Oak Leaf Cluster (3rd Award) 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 medical personnel, and a record of this treatment must have been made a matter of official record.

2.  The applicant's WD AGO Form 53-55 fails to include the PH in the list of awards contained in item 33 and item 34 contains the entry "None," which indicates he was never wounded in action.  Further, there are no medical treatment records, hospital reports, or other documents in the NPRC file or provided by the applicant that show he was ever treated for a combat-related wound while serving on active duty.  As a result, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.

3.  Absent any evidence in the NPRC file to corroborate the information the applicant provides in his supporting statements, or any independent evidence (medical treatment records) confirming his treated for a combat-related wound while serving on active duty, it would not be appropriate or serve the interest of all those who served during WWII and who faced similar circumstances to support granting the requested relief in this case.

4.  The applicant and all others concerned should know that this decision 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)                                         AR20090013616



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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