IN THE CASE OF:	  

		BOARD DATE:	    23 February 2010

		DOCKET NUMBER:  AR20090014331 


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 received a gunshot wound in combat during World War II and his discharge document does not show he was wounded.  He further states he should be awarded the Purple Heart for his wounds. 

3.  The applicant provides in support of his application a copy of his WD AGO Form 53-55 (Enlisted Record and Report of Separation) and a Department of Veterans Affairs (VA) Rating Decision, dated 12 June 2009. 

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 for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case, including the applicant's WD AGO Form 53-55 and documents provided by the applicant.

3.  The available evidence shows that the applicant was inducted into the Army of the United States on 8 June 1943 and entered active service on 23 June 1943. He completed basic combat training, advanced individual training, and was subsequently awarded military occupational specialty (MOS) 055 (Dispatcher Clerk Motor Vehicle).

4.  The applicant served in the European-African-Middle Eastern Theater of Operations (EAMETO) from 1 August 1944 to on or about 17 June 1946.  He served in the Rhineland Campaign from 15 September 1944 to 21 March 1945. 

5.  A review of the Office of the Surgeon General Hospital Admission Cards for the Years 1942 to 1945 does not show that the applicant received medical treatment for a gunshot wound.

6.  On 2 July 1946, the applicant was discharged by reason of demobilization.  He was issued a WD AGO Form 53-55 upon discharge.  Item 33 (Decorations and Citations) does not show he was awarded the Purple Heart and item 34 (Wounds Received in Action) contains the entry "NONE."

7.  The applicant provided a copy of his VA Rating Decision, dated 12 June 2009, that shows he was rated 10 percent disabled due to a service-connected gunshot wound to his right jaw as support for his application. 

8.  Army Regulation 600-45 (Decorations), then in effect, which governed the award of Army decorations until 23 August 1951, stated the Purple Heart was awarded to citizens of the United States serving with the Army, who are wounded in action against an enemy of the United States, or as a direct result of an act of such enemy, provided such wound necessitated treatment by a medical officer.  This regulation stated that for the purpose of considering an award of the Purple Heart, a “wound” is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for wounds sustained 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.  An example of an injury which does not justify award of the Purple Heart are accidents to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is entitled to award of the Purple Heart for a gunshot wound that he sustained during combat operations in Europe during World War II.  

2.  The applicant's WD AGO Form 53-55 shows that he had no wounds recorded on his separation document nor has the applicant provided any medical evidence from his enlistment period that shows he sustained a gunshot wound to his right jaw. 

3.  The requirement for award of the Purple Heart is that a Soldier must have received medical treatment by medical personnel of the U.S. Armed Forces and that the injury or wound must be documented in medical records.

4.  There is insufficient evidence to show the applicant sustained a wound as a result of hostile action.  There is no evidence to show that U.S. Armed Forces medical personnel treated the applicant and that this treatment was made a matter of official record.  Therefore, regrettably, there is no basis for awarding the applicant the Purple Heart.

5  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 that requirement.

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)                                         AR20090014331



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ABCMR Record of Proceedings (cont)                                         AR20090014331



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