IN THE CASE OF:
BOARD DATE: 09 March 2010
DOCKET NUMBER: AR20090015410
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 he was hospitalized from December 1944 until April 1945 in Harrogate, England due to frost bite and trench foot. He states he sustained frostbite during the Battle of the Bulge while trying to avoid capture, behind German lines. He also states that he collects 10 percent disability as a result of the incident.
3. The applicant provides a copy of his WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge) ending on 11 February 1946 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 applicants 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 applicants 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 in 1973. It is believed that the applicants 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. The only record available to the Board was the applicant'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 on 14 September 1943 and he entered active duty on
5 October 1943. He served in the European Theater of Operations (ETO) from 28 June 1944 to 26 January 1946.
4. On 11 February 1946, the applicant was honorably discharged from active duty. He had completed 2 years, 2 months, and 7 days of active service.
5. Item 33 (Decorations and Citations) of his WD AGO Form 53-55 does not contain an entry for the Purple Heart.
6. Item 34 (Wounds Received in Action) of the applicant's WD AGO Form 53-55 contains the entry "NONE."
7. The applicant's service medical records were not available for review.
8. Army Regulation 600-45 (Decorations), then in effect, which governed the award of Army decorations until 23 August 1951, 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. Title 38, U.S. Code, provides for the Department of Veterans Affairs (VA) to make a determination and award compensation for disabilities which were incurred in or aggravated by active military service. The VA does not make any determination as to whether an injury was received as a result of hostile action.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he should be awarded the Purple Heart.
2. Item 34 of the applicants WD AGO Form 53-55 does not indicate he received any wounds in action and his service medical records were not available for review. Therefore, in the absence of military records which show that the applicant was wounded and treated for wounds resulting from hostile action, there is insufficient evidence upon which to base award of the Purple Heart in this case.
3. The applicant contends he is receiving 10 percent disability. It is presumed he is referring to a disability he is receiving from the VA. The VA determines whether an injury was incurred in or aggravated by active military service. These decisions do not determine nor is it intended that they determine whether an individual's injuries were a result of hostile action.
4. 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 this 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) AR20090015410
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ABCMR Record of Proceedings (cont) AR20090015410
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