IN THE CASE OF:
BOARD DATE: 27 May 2010
DOCKET NUMBER: AR20090020054
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:
* his injury was not recorded in his service record
* it may have been lost or destroyed
* he was discharged in Vienna, Austria
* he could not locate any witnesses
3. The applicant provides:
* two statements from fellow Soldiers at the time in question
* WD AGO Form 53-55 (Enlisted Record and Report of Separation)
* a letter dated 23 October 2009 from a Member of Congress
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 applicants 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 applicants 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 was inducted into the Army of the United States on
11 September 1942. He served in the European Theater of Operations and was honorably discharged on 27 February 1946.
4. The applicants WD AGO Form 53-55 does not show the Purple Heart as an authorized award. Item 34 (Wounds Received in Action) of his WD AGO Form
53-55 shows the entry, "None."
5. There is no evidence in the available records that shows the applicant was awarded the Purple Heart or was wounded as a result of hostile action during World War II.
6. In support of his claim, the applicant provided a statement from his platoon leader at the time in question. He attests to the best of his recollection:
* on or about 10 April 1945 the applicant was with his unit when they were clearing out the enemy in the town of Arnstadt, Germany and an artillery shell burst injuring several of them
* he [the platoon leader] was seriously injured and evacuated to a hospital in the rear
* he [the platoon leader] was in the hospital several weeks
* the applicant was with us and probably was injured by the blast as were several others
7. The applicant also provided an eyewitness statement from the battalion medic supervisor at the time in question. He attests:
* he was directed to the scene of an artillery blast that had seriously injured several members of Company I, 355th Infantry, 89th Infantry Division
* he removed a jagged piece of shrapnel from the left hand of the applicant
* he admonished the applicant to report to his company medic for further treatment
* in a combat setting all major injures were recorded in service records by the company clerk but those Soldiers who received non-threatening injuries and did not receive treatment by doctors were in many cases not recorded
8. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, 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:
There is no evidence in the available records that shows the applicant was awarded the Purple Heart or was wounded as a result of hostile action during World War II. In the absence of orders or other evidence of record showing that the applicant was injured or treated for wounds as a result of hostile action, the eyewitness statements provided by the applicant are not sufficient as a basis for award of the Purple Heart. Regrettably, there is insufficient evidence on which to base award of the Purple Heart in this case.
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) AR20090020054
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ABCMR Record of Proceedings (cont) AR20090020054
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