IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20090018984 


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, two awards of the Purple Heart.

2.  The applicant states that he was wounded on two occasions:  he injured his back on 23 June 1944 and on 7 December 1944, a tree explosion knocked him unconscious, but his WD AGO Form 53-55 (Enlisted Record and Report of Separation) shows the entry "None." 

3.  The applicant provides a copy of his WD AGO Form 53-55 and Honorable Discharge Certificate, dated 30 October 1945; a copy of a diagnostic radiology report, dated 15 October 2009; and a copy of a doctor statement, dated 13 October 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 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.  His WD AGO Form 53-55 shows he was inducted into the Army of the United States on 3 October 1943 and entered active service on 29 October 1943.  This form also shows that at the time of separation, he held military occupational specialty 844 (Light Artillery Gun Crewman) and was assigned to Battery C, 42nd Field Artillery Battalion.

4.  His WD AGO Form 53-55 shows he departed the continental United States (CONUS) on 12 May 1944 and arrived in the European Theater of Operations (ETO) on 18 May 1944.  He departed the ETO on 2 July 1945 and arrived back in CONUS on 10 July 1945.  He completed 10 months and 25 days of continental service and 1 year, 1 month, and 23 days of foreign service.  He was honorably separated on 30 October 1945.

5.  Item 32 (Battles and Campaigns) of his WD AGO Form 53-55 shows he participated in the Central Europe, Rhineland, Northern France, Normandy, and Ardennes campaigns during World War II (WWII).

6.  Item 33 (Decorations and Citations) of the applicant’s WD AGO Form 53-55 shows he was awarded the European-African-Middle Eastern Theater Campaign Ribbon with 5 bronze service stars, Good Conduct Medal, and Bronze Star Medal.  Item 33 does not show award of the Purple Heart.

7.  Item 34 (Wounds Received in Action) of his WD AGO Form 53-55 contains the entry "None."

8. He submitted the following documents:

	a.  A medical statement, dated 13 October 2009, from a doctor who states that he (the applicant) has had a long history of back pain and that he was unable to seek treatment because he was in combat.

	b.  A radiology report, dated 15 October 2009 showing he suffers from osteoporosis of the visualized bony structure.

9.  The Purple Heart was established by General George Washington at Newburgh, New York on 7 August 1782 during the Revolutionary War.  It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contends that he should be awarded two awards of the Purple Heart based on the two injuries he received.

2.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria.  When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for the award. 

3.  There is no evidence in his available service personnel records which conclusively shows his current low back pain resulted from hostile action or that he was treated for such injury.  Regrettably, absent evidence which conclusively shows he sustained wounds or injuries as a result of hostile action, that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is insufficient basis for awarding him the Purple Heart in this case.

4.  The Board wants the applicant and all others concerned to know that this action 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

________  ________  ________  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.



      _________________________
                 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)                                         AR20090018984



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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