IN THE CASE OF:	  

		BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090018092 


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 that he was a prisoner of war and that he was wounded and awarded the Purple Heart.  Due to the fire in St. Louis, he has no record of this.

3.  In support of his application, he provides copies of a Western Union telegram, a newspaper article, his WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge), his Honorable Discharge Certificate, and a letter of support.

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 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 applicant's records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record, and documentation submitted by the applicant, for the Board to conduct a fair and impartial review of this case.

3.  His available military records show that he was inducted into the Army of the United States and entered on active duty on 4 March 1941.  He completed training in military occupational specialty 745, rifleman.  He served overseas in the European theater of operations from 24 October 1944 to 8 June 1945.

4.  He was honorably discharged from active duty on 21 September 1945 for the convenience of the government at demobilization.  Entries on his WD AGO 
Form 53-55 do not show award of the Purple Heart.  Item 31 (Military Qualification and Date) lists the Expert Infantryman Badge.  Item 33 (Decorations and Citations) lists four bronze service stars and the Army Good Conduct Medal with one clasp.  Item 55 (Remarks) lists the following awards:   the American Defense Service Ribbon, the European-African-Middle Eastern Campaign Medal, one overseas service bar, and the Honorable Service Lapel Button.

5.  Item 34 (Wounds Received in Action) of the applicant's WD AGO Form 53-55 shows the entry, "None," to indicate he was not wounded while he served during World War II.

6.  There are no orders in the applicant's available service personnel records that show he was awarded the Purple Heart.  There is no evidence in his records that shows he was wounded or treated for wounds as a result of hostile action.

7.  He submitted a copy of a Western Union telegram wherein his wife was advised of his prisoner-of-war status.  He also submitted a copy of a newspaper article pertaining to his prisoner-of-war status.  He further submitted a letter of support from his brother-in-law wherein he stated that upon the applicant's return home, he discussed how he was injured in the left leg at the Battle of the Bulge on 19 December 1944 and at that time he was taken as a prisoner of war.

8.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained while in action against the enemy or as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

9.  Army Regulation 600-8-22 also provides that during World War II and the Korean War the Purple Heart was not awarded to Soldiers who had been injured while in captivity or while being taken captive.  These injuries were considered to be the result of war crimes and not the result of a legal action of war.  War Department policy at that time required that wounds must have been received in action against the enemy or, in other words, incurred in actual combat.  Executive Order 11016, dated 25 April 1962, provided more latitude with respect to award of the Purple Heart to prisoners of war, as well as the authority to award the decoration to wounded Soldiers even in the absence of a formal declaration of war.  The issue as to whether this change in policy would be implemented retroactively to prisoners of war from World War I, World War II, and the Korean War was considered several times.  Initially it was decided that the change in policy would not be retroactively implemented.  It was concluded that it would be inappropriate for the Department of Defense to retroactively change the standards and, in effect, countermand the decisions of the past leadership.  However, section 521a of the National Defense Authorization Act of 1996 authorized award of the Purple Heart to any former prisoner of war who was wounded before 25 April 1962 while held as a prisoner of war or while being taken captive in the same manner as a former prisoner of war who was wounded on or after that date.

DISCUSSION AND CONCLUSIONS:

1.  By regulation, to be awarded the Purple Heart, it is necessary to establish that a Soldier was wounded or injured in action, while held as a prisoner of war, or while being taken captive.  There is no evidence of record and the applicant has provided insufficient evidence which shows that he was wounded or treated for wounds as a result of hostile action, wounded or injured while held as a prisoner of war, or wounded or injured while being taken captive during World War II.  

2.  The documentation provided by the applicant was carefully considered; 
however, the overall merits of the case including the submissions are insufficient as a basis to grant the applicant's request.  In all cases the burden of proof rests with the applicants to submit substantiating evidence of their entitlement for award of the Purple Heart in the absence of the evidence of record.

3.  In view of the foregoing, there is no basis for granting the applicant's request.


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)                                         AR20090018092



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ABCMR Record of Proceedings (cont)                                         AR20090018092



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