IN THE CASE OF:	  

		BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090016219 


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 in early March 1945, while in the Hagenau Forest, he sustained shrapnel wound to his hand from German artillery.  He further states he never received the PH and his wound was not listed on his 
WD AGO 53-55 (Enlisted Record and Report of Separation-Honorable Discharge).  

3.  The applicant provides a self-authored statement and an Authorization for Release of Confidential Information 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 and the documents provided by the applicant.

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 21 April 1944.  It also shows he was assigned to the 142nd Infantry Division, and that he served in the European Theater of Operations from 4 November 1944 through 17 May 1946. Technician five (Tec 5) 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 Carbine (M-1) Rifle Bar and the Combat Infantryman Badge.  Item 32 (Battles and Campaigns) shows he participated in the Rhineland and Central Europe 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:  WWII Victory Medal, European African Middle Easter Theater Ribbon with 2 bronze battle stars, 3 Overseas Service Bars, Army of Occupation with Germany Clasp, and Army Good Conduct Medal.  Item 34 (Wounds Received in Action) contains the entry "None."  

6.  The applicant's WD AGO Form 53-55 confirms that on 29 May 1946, he was honorably separated in the rank of Tec 5 after completing a total of 2 years, 
1 month, and 9 days of active military service.  The FSM authenticated the
WD AGO Form 53-55 with his signature in item 56 (Signature of Member Being Separated) on the date of separation.  

7.  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 was carefully considered.  However, by regulation, in order to support award of the PH, there must be evidence a member was wounded/injured in action, was treated for the wound/injury by military medical personnel, and a record of this medical treatment must have been made a matter of official record.

2.  There are no other documents on file or provided by the applicant that show he ever received a wound or injury as a result of enemy action that 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 World War II 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)                                         AR20090016219



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090016219



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1