IN THE CASE OF:	

		BOARD DATE:	  25 March 2010

		DOCKET NUMBER:  AR20090013979 


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 (PH).

2.  The applicant states he received a shrapnel wound in his back in Germany during World War II (WWII).  He claims a major improperly forced them to go the wrong way and led them into an ambush.  The major threatened them with a court-martial if they reported the incident.  He states he has suffered his whole life as a result of the shrapnel wound and is only asking for the PH, not compensation.

3.  The applicant provides a Congressional Inquiry packet with a 2008 medical history form and discharge documents to support 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 record is not available to the Board.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  There are sufficient documents in a NPRC reconstructed record for the Board to conduct a fair and impartial review of this case.  This case is being considered using a reconstructed record that consists of the applicant's WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) and miscellaneous documents.

3.  The WD AGO Form 53-55 shows the applicant was inducted into the Army of the United States on 22 January 1943 and entered active duty on 29 January 1943.  It also shows he served in the European theater of operations (ETO) from 7 June 1943 to 6 November 1945 and participated in the Normandy, Northern France, Rhineland, and Central Europe campaigns of WWII.  It further shows private first class is the highest rank he held on active duty and that he earned the following awards:

* Army Good Conduct Medal
* Meritorious Unit Badge
* European-African-Middle Eastern Campaign Medal with five bronze service stars
* WWII Victory Medal.

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

5.  The NPRC reconstructed record is void of any documents showing the applicant was wounded in action and of medical treatment records or Office of the Surgeon General Hospital Admission Records indicating he was ever treated for a combat-related wound while serving in the ETO.

6.  The applicant provides a 2008 medical history form that contains various entries indicating he suffers from back pain and other conditions as a result of WWII.  One entry indicates the removal of shrapnel in 1949.

7.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards policy.  Paragraph 2-8 provides guidance on award of the PH.  It states the PH is authorized to be awarded for being wounded in action.  It further states in order to support award of the PH, there must be evidence the wound for which the award is being made was received as a result of enemy action, the wound required treatment by medical personnel, and a record of the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention he was wounded in action in Germany and should be awarded the PH has been carefully considered.  However, the evidence does not support this claim.

2.  By regulation, in order to support award of the PH there must be evidence confirming the wound for which the award is being made was received as a result of enemy action, the wound required treatment by military medical personnel, and a record of the medical treatment must have been made a matter of official record.  The available evidence in the NPRC reconstructed record and/or provided by the applicant fails to confirm he was wounded in action during WWII or that he was ever treated for a combat-related wound by military medical personnel.  As a result, the regulatory burden of proof to award the PH has not been met.

3.  Although the applicant provides a medical history form indicating he had shrapnel he received during WWI removed in 1949 and he suffers from back pain as a result of WWII, absent any evidence confirming he was wounded in action or treated for a combat-related wound while serving in the ETO, the evidence is not sufficient to grant the requested relief.

4.  The applicant and all others concerned should know that this action related to award of the PH in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all other Americans should be justifiably proud of the FSM's 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)                                         AR20090013979



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ABCMR Record of Proceedings (cont)                                         AR20090013979



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