IN THE CASE OF:

		BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090014534 


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, in effect, that he received a fragment wound to his hip and that the fragment is still imbedded in his hip.  Although he received award of the Bronze Star Medal for his heroics he never received award of the PH for the shrapnel wound he sustained to his hip.  Additionally, he states that he suffers from Post Traumatic Stress Disorder.

3.  The applicant provides a third party statement, his WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge), and his Honorable Discharge Certificate 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 complete military record is 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 the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents on file for the Board to conduct a fair and impartial review of this case.  This case is being considered using a reconstructed record that primary consists of the FSM's WD AGO Form 53-55.

3.  The applicant's WD AGO Form 53-55 shows he was inducted into the Army of the United States and entered active duty on 7 April 1944.  It also shows he was assigned to the 44th Infantry Division and that he served in the European Theater of Operations from 1 October 1944 through 15 July 1945.  Corporal (CPL)/E-4 is the highest rank he held while serving on active duty.  

4.  Item 31 (Military Qualifications) of the applicant's WD AGO Form 53-55 shows he earned the Marksman Marksmanship Qualification Badge with Rifle.  Item 32 (Battles and Campaigns) shows he participated in the Central Europe and Rhineland campaigns of World War II (WWII).

5.  Item 33 (Decorations and Citations) of the applicant's WD AGO Form 53-55 shows he earned the following awards during his active duty tenure:  European- African-Middle Eastern Theater Ribbon, Army Good Conduct Medal, WWII Victory Medal, and American Campaign Medal.  Item 34 (Wounds Received in Action) contains the entry "None."  

6.  The applicant's WD AGO Form 53-55 confirms that on 15 April 1946 he was honorably separated in the rank of CPL after completing a total of 2 years and 
9 days of active military service.  

7.  The applicant provides a third-party statement from an individual who states that the applicant was wounded during the assault on Normandy Beach during WWII.

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 a member was wounded or injured as a result of enemy action.  The wound or injury for which the PH is being awarded must have required treatment by a medical officer; this treatment must be supported by medical treatment records that were made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim that he was wounded in action and is eligible for the PH and the supporting documents he provided were carefully considered.  However, by regulation, in order to support award of the PH, there must be evidence a member was wounded/injured in action that the wound/injury was treated by military medical personnel and the medical treatment must have been made a matter of official record.

2.  Item 34 of the applicant's WD AGO Form 53-55 contains the entry "none," which indicates he was never wounded in action.  In addition, there are no orders or other documents on file or provided by the applicant that indicate he was ever treated for a combat related wound by military medical personnel while serving on active duty. 

3.  The supporting statement provided by the applicant has been considered.  However, the available records show the applicant arrived in the European Theater of Operations on 1 October 1944.  The assault on Normandy Beach was in June 1944.

4.  Absent any available evidence corroborating the applicant's claim he was wounded in action, or that shows he sustained a wound as a result of enemy action that required treatment by military medical personnel, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Therefore, his request cannot be granted at this late date.  

5.  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 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)                                         AR20090014534



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ABCMR Record of Proceedings (cont)                                         AR20090014534



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