BOARD DATE: February 23, 2010
DOCKET NUMBER: AR20090015983
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 while serving in Germany with the 41st Engineer Battalion of Patton's 3rd Army, he was wounded by a German Soldier with a bayonet and was never awarded the PH for this wound.
3. The applicant provides his WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) in support of his request.
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 (NPRC) in 1973. It is believed his records were lost or destroyed in that fire. This case is being considered using the NPRC reconstructed file which primarily consists of the applicants WD AGO Form
53-55.
3. The applicants WD AGO Form 53-55 shows he was inducted into the Army of the United States and he entered active duty on 24 October 1945. He continuously served on active duty for 1 year and 7 months until being honorably discharged on 30 October 1946. It also shows he held military occupational specialty (MOS) 931 (Heavy Truck Driver), and that he served in the European Theater of Operations (ETO) from 4 June through 27 August 1946.
4. Item 33 (Decorations and Awards) of the applicant's WD AGO Form 53-55 shows that during his active duty tenure, he earned the Army of Occupation Medal, Army Good Conduct Medal, and World War II Victory Medal. The
WD AGO Form 53-55 also shows he earned the Army Lapel Button and Expert Marksmanship Qualification Badge with Rifle Bar. The PH is not included in the list of awards contained in item 33. Item 34 (Wounds Received in Action) contains the entry None."
5. There are no documents in the NPRC file that indicate the applicant was ever recommended for or awarded the PH by proper authority while serving on active duty. There are also no medical treatment records or hospital reports on file that indicate he was ever treated for a combat-related wound or injury during his active duty tenure.
6. 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 the wound for which the award is being made was received as a result of enemy action, that the wound was treated by medical personnel, and a record of this medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he should be awarded the PH was carefully considered. However, there is insufficient evidence to support this claim.
2. By regulation, 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 this treatment must have been made a matter of official record.
3. The available evidence fails to corroborate the applicant's claim that he was wounded in action in Germany in 1945. His WD AGO Form 53-55 shows he was inducted into the Army in October 1945 and did not arrive in the ETO until June 1946, a year after the war ended. The NPRC file is void of any indication that the applicant was ever wounded in action or treated for a combat-related wound or injury by military medical personnel while serving in Germany. It also fails to show he was recommended for or awarded the PH by proper authority while serving on active duty.
4. The applicant's WD AGO Form 53-55, Item 34, contains the entry None," which indicates he was never wounded as a result of enemy action.
5. Absent any documentary evidence in the NPRC file or provided by the applicant that confirm he was wounded in action, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.
6. The applicant and all others concerned should know that the decision regarding 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) AR20090001557
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ABCMR Record of Proceedings (cont) AR20090015983
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