BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090015597 


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, in effect, award of the Purple Heart (PH).

2.  The applicant states, in effect, that he believes he should be awarded the PH for injuries he received as a direct result of enemy action at Nord Hausen Kassel only days after the end of World War II (WWII).

3.  The applicant provides a self-authored statement and a Department of the Air Force Review Boards Office letter, dated 17 August 2009, 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 applicant's WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) and the documents he provides.

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 24 November 1942 and that corporal (CPL) is the highest rank he held while serving on active duty.  It also shows he was assigned to the 911th Air Engineer Squadron, 493rd Air Service Group, and that he served in the European theater of operations from 26 August 1943 through 30 October 1945.

4.  Item 32 (Battles and Campaigns) of the applicant's WD AGO Form 53-55 shows he participated in the Normandy, Northern France, Rhineland, and Central Europe campaigns of WWII and item 33 (Decorations and Citations) shows he earned the following awards during his active duty tenure:  European African Middle Easter Theater Service Ribbon, Army Good Conduct Medal, and Meritorious Unit Award.  Item 34 (Wounds Received in Action) contains the entry "none."

5.  The applicant's WD AGO Form 53-55 confirms that he was honorably separated in the rank of CPL after completing a total of 2 years, 10 months, and 27 days of active military service on 20 October 1945.

6.  The applicant's reconstructed record contains a Department of Veterans Affairs (VA) Award of Disability Compensation or Pension Rating, dated 8 January 1946, which shows the VA granted the applicant service connection and a 30-percent disability rating for a dislocated right shoulder (major) and scars on his left knee and both ankles.

7.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains guidance on award of the PH and states, in pertinent part, that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that it required treatment by military 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 claim that he was wounded in action and is eligible for the PH was carefully considered.  However, by regulation, in order to support award of the PH, there must be evidence that the member was wounded/injured as a result of enemy action, that the wound required treatment by military medical personnel, and a record of the medical treatment must have been made a matter of official record.

2.  Although the VA rated the applicant with a 30-percent disability for his dislocated right shoulder and scars on his left knee and both ankles, there are no other documents on file or provided by the applicant that show these injuries were received as a result of enemy action or that they required treatment by military medical personnel during his active duty tenure.

3.  The applicant's WD AGO Form 53-55 does not include the PH in the list of awards in item 33 and item 34 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.

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.  As a result, it would not be appropriate or serve the interest of all those who served during WWII and who faced similar circumstances to award the applicant the PH 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)                                         AR20090015597



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ABCMR Record of Proceedings (cont)                                         AR20090015597



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