IN THE CASE OF:	  

		BOARD DATE:	  25 February 2010

		DOCKET NUMBER:  AR20090014233 


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 the records of her deceased father, a former service member (FSM), be corrected to show award of the Purple Heart. 

2.  The applicant states that the FSM should be awarded the Purple Heart for an injury he suffered during war service and the subsequent deformity of his leg.  

3.  The applicant provides in support of her request, a copy of the FSM’s WD AGO Form 53-55 (Enlisted Record and Report of Separation), dated 10 September 1974; a copy of her certificate of birth, dated 11 January 1956; and a copy of a letter, dated 11 September 2009, from the National Personnel Records Center, in support of her 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 FSM’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 FSM’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 FSM’s WD AGO Form 53-55 shows he enlisted in the Regular Army and entered active duty at Fort Hayes, OH, on 8 August 1940.  This form also shows that at the time of his separation, the FSM held military occupational specialty 931 (Heavy Truck Driver) and was assigned to Company B, 83rd Chemical Company. 

4.  The FSM’s WD AGO Form 53-55 shows he departed the United States on 12 December 1942 and arrived in the European Theater of Operations (ETO) on 25 January 1943.  He then departed the ETO on 22 April 1944 and arrived back in the United States on 7 May 1944.  He completed 5 years, 1 month, and 11 months of continental service and 1 year, 4 months, and 20 days of foreign service.  He was honorably discharged on 16 February 1947 and he was issued a Certificate of Disability for Discharge.

5.  Item 32 (Battles and Campaigns) of the FSM’s WD AGO Form 53-55 shows he participated in the Tunisia, Sicily, and Naples-Foggia campaigns during his service in World War II.

6.  Item 33 (Decorations and Citations) of the FSM’s WD AGO Form 53-55 shows he was awarded the American Defense Theater Medal, the European-African-Middle Eastern Campaign Medal with three bronze service stars, and the World War II Victory Medal.  Item 33 does not show award of the Purple Heart.

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

8.  The information from a hospital admission card, created on 29 January 2010, by the Office of the Surgeon General shows the FSM suffered a compound fracture while a passenger in a jeep that overturned in an accident on 27 January 1944.  

9.  The FSM's reconstructed records contain multiple WD AGO Forms 8-85 (Operation Report), dated on miscellaneous dates in 1945 and 1946 as follows:

	a.  Operation report, dated 9 November 1945, shows the FSM was diagnosed with deformity of the foot as evidenced by ulcer and cicatrix on the heel, secondary to compound fracture of the femur, tibia, and fibula, caused by an accident that occurred when the jeep he was riding overturned on 27 January 1944 in Natuno, Italy.  

	b.  Operation report, dated 19 January 1946, shows similar entries with respect to the cause of the injury. 

	c.  Operation report, dated 18 February 1946, shows similar entries with respect to the cause of the injuries. 

	d.  Operation report, dated 25 March 1946, shows similar entries with respect to the cause of the injuries. 

10.  The Purple Heart was established by General George Washington at Newburgh, New York on 7 August 1782 during the Revolutionary War.  It was reestablished by the President of the United States per War Department 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.  The Purple Heat may also be awarded 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.  

	a.  Example of enemy-related injuries which justify the award of the Purple Heart include injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed land-mine, naval-mine, or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; concussion injuries caused as a result of enemy generated explosions.

	b.  Examples of injuries or wounds which do not qualify for award of the Purple Heart include frostbite or trench foot injuries; heat stroke; food poisoning 

not caused by enemy agents; chemical, biological, or nuclear agents not released by the enemy; battle fatigue; disease not directly caused by enemy agents; accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; self-inflicted wounds (e.g., a Soldier accidentally fires their own gun and the bullet strikes their leg), except when in the heat of battle, and not involving gross negligence; post traumatic stress disorder; and jump injuries not caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contends that the records of her deceased father, a FSM, 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 award.  

3.  The evidence of record shows the FSM suffered multiple compound fractures in January 1944 when the jeep he was riding overturned.  However, there is no evidence that the jeep was overturned due to hostile action or friendly fire in the heat of battle.  Regretfully, accidents that are not caused by the enemy do not qualify for award of the Purple Heart.

4.  The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.  In this case, the FSM's reconstructed records do not show he was wounded or injured as a result of hostile action or treated for such wounds.  

5.  Notwithstanding the applicant's sincerity, in the absence of additional documentation that conclusively shows the FSM was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base award of 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 the applicant 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)                                         AR20090014233



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ABCMR Record of Proceedings (cont)                                         AR20090014233



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