IN THE CASE OF:
BOARD DATE: 6 May 2010
DOCKET NUMBER: AR20090018678
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 and correction of item 30 (Wounds Received in Action) of his WD AGO Form 53-98 (Military Record and Report of Separation - Certificate of Service) to show he was wounded in action in May 1945.
2. The applicant states:
* item 30 of his WD AGO Form 53-98 shows no wounds
* he received a shrapnel wound in May 1945 in the European theater of operations
* he was wounded in the line of duty
* his wound should entitle him to a possible medal (i.e., Purple Heart)
3. The applicant provides:
* hospital record, dated 21 May 1945
* WD AGO Form 53-98
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 for the Board to conduct a fair and impartial review of this case.
3. The applicant entered active duty on 28 November 1944. He served as a military police officer in the European theater of operations from 25 January 1945 to 2 November 1945 and was released from active duty on 25 May 1946.
4. The applicant's WD AGO Form 53-98 shows the American Service Medal, European-African-Middle Eastern Campaign Medal, World War II Victory Medal, and Meritorious Service Unit Plaque as authorized awards. Item 30 (Wounds Received in Action) of his WD AGO Form 53-98 shows the entry, "None."
5. There are no orders for the Purple Heart in the available records. However, the applicant provided a hospital record, dated 21 May 1945, which states he was hospitalized on 8 May 1945 at the 280th Station Hospital in the European theater of operations. He was diagnosed with "wound, penetrating, thigh, right" and was discharged to duty on 12 May 1945.
6. Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained 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 by medical personnel, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. There are no orders for the Purple Heart. However, contemporaneous medical evidence of record shows the applicant was hospitalized for a penetrating wound to his right thigh on 8 May 1945 in the European theater of operations.
2. Any reasonable doubt should be resolved in the applicant's favor and it is accepted that he was wounded in action prior to the end of the war. Therefore, the 21 May 1945 hospital record provided by the applicant is accepted as a sufficient basis for award of the Purple Heart. In addition, item 30 of the applicant's WD AGO Form 53-98 should be corrected to show he was wounded in action in May 1945 in the European theater of operations.
BOARD VOTE:
___X____ ____X___ ____X___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
a. awarding him the Purple Heart for wounds received in action in May 1945 in the European theater of operations,
b. adding the Purple Heart to item 29 (Decorations and Citations) of his WD AGO Form 53-98,
c. deleting the entry "None" from item 30 of his WD AGO Form 53-98, and
d. adding the entry "May 1945 European Theater of Operations" to item 30 of his WD AGO Form 53-98.
____________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) AR20090018678
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ABCMR Record of Proceedings (cont) AR20090018678
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