BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20090020482 


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, on behalf of his father, a former service member (FSM), requests corrected of his father's DD Form 214 (Armed Forces of the United States report of Transfer or Discharge) to show award of the Purple Heart. 

2.  The applicant states that his father was on a secret assignment and he was attached to the British Army in July 1941.  At the time, America was a non-combatant (neutral) power as it entered the war in December 1941.  Participation of United States personnel in combat operations on behalf of the British Empire constituted a violation of international law as it applied to non-combatants.  Therefore, no documentation was provided concerning his father's wounds that would implicate the United States in combat operations.

3.  The applicant provides the following documentary evidence:

* A letter, dated 24 September 2009, from the U.S. Army Human Resources Command (USAHRC), Alexandria, VA
* A letter, dated 23 March 2009, from the Army Board for Correction of Military Records (ABCMR), Arlington, VA
* A copy of a War Department letter, dated 7 July 1941
* A copy of his father's Identification (ID) Card - Allied Forces and Voluntary Workers with the British Forces, Middle East
* A photograph, dated 13 November 2008, of an arm with markings of a wound
* 
A medical doctor statement, dated 24 August 2009
* A sworn statement, dated 3 November 2009
* A copy of a Durable Power of Attorney

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 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 FSM’s records show he enlisted in the Regular Army (RA) on 15 December 1928 and he served with the 74th Ordnance Company in Hawaii.  He was discharged on 6 February 1932.  He subsequently served through a series of reenlistments in the RA including four 3-year reenlistments on
7 February 1932, 16 May 1935, 20 June 1938, and 20 June 1941.  He served with various ordnance units at Fort Benning, GA, and Aberdeen Proving Ground, MD.

3.  His records also show he served with the U.S. Military North African Mission (MNAM) as a tank technical instructor and observer in Cairo, Egypt, from 5 July 1941 to 19 March 1942.  During this period, he served as a military observer with British Forces in the Libyan Desert from on or about 15 September 1941 to on or about 5 November 1941.  He also served in India from on or about 9 November 1941 to on or about 28 November 1941.

4.  He was honorably discharged on 14 May 1942 in the rank of master sergeant to accept appointment as a warrant officer (WO).  The WD AGO Form 0528 (Transcript from Enlisted Record) he was issued shows the following entries:

	a.  Item 31 (Decorations and Awards) shows the American Defense Service Medal and the European-African-Middle Eastern Campaign Medal.

	b.  Item 32 (Wounds Received in Action) shows the entry "None."

5.  On 1 June 1942, he was appointed as a WO (junior grade) in the Army of the United States (AUS) and he executed an Oath of Office on the same date at the U.S. MNAM in Cairo, Egypt.  His appointment was subsequently changed to an RA appointment on 24 September 1942.

6.  On 3 December 1942, he was appointed as a temporary first lieutenant in the AUS and he was ordered to active duty with assignment to the Delta Service Command, Heliopolis, Egypt.

7.  On 2 February 1948, he was appointed in the Officer Reserve Corps as a Reserve Commissioned Officer of the Army in the rank of captain and he executed an Oath of Office on the same date.

8.  On 28 October 1954, he was relieved from active duty as a commissioned officer.  His DD Form 214 (Report of Separation from the Armed Forces of the United States) shows the following entries:

	a.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the Army Good Conduct Medal, American Defense Medal, European-African-Middle Eastern Campaign Medal, Asiatic-Pacific Campaign Medal, Meritorious Unit Commendation, World War II Victory Medal, Republic of Korea Presidential Unit Citation, Korea Service Medal, United Nations Service Medal, and six Overseas Service Bars.

	b.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) shows the entry "None."

9.  On 29 October 1954, he was appointed as a WO (junior grade) in the AUS and he executed an Oath of Office on the same date.

10.  On 6 December 1956, he was honorably discharged (resignation).  His DD Form 214 for this period neither listed a Purple Heart nor any wounds received as a result of enemy action.

11. On 7 December 1956, he executed a 3-year enlistment in the RA in the rank of master sergeant.  However, he was discharged on 30 January 1957.  His DD Form 214 for this period neither listed a Purple Heart nor any wounds received as a result of enemy action.

12.  The FSM's complete service records are available for review.  None of his WD AGO Forms 24 (Service Records) or DA Forms 66 (Officer Qualification Record) lists a combat injury or wound or award of the Purple Heart.

13.  The FSM's complete military medical records throughout his entire military service are also available for review to include his enlistment/reenlistment or appointment medical examinations, medical certificates, reports, charts, clinical records, dispensary records, and several other medical records including those during his service in Egypt in 1941 and 1942.  However, none list a combat injury or wound or treatment of a combat injury or wound.

14.  His records also contain a detailed certificate covering the period from 5 July 1941 to 19 March 1942 in support of an award of the Legion of Merit (which was ultimately disapproved by the Department of the Army) during which he served as an observer and technical advisor to the British Middle East Forces on ordnance materiel.  The certificate goes on to describe, in detail, his duties and achievements during this period; however, it does not list or address any wounds or injuries sustained by him during his mission with the British Army or treatment for any wounds or injuries.

15.  The applicant submitted the following documents:

	a.  A copy of a letter, dated 24 September 2009, from the Chief, Military Awards Branch, USAHRC, denying him award of the Purple Heart as there was no evidence of wounds or injuries received as a result of enemy action or record of treatment.

	b.  A copy of a War Department letter, dated 7 July 1941, advising his wife that he arrived in Cairo on 5 July 1941.

	c.  A copy of his ID Card - Allied Forces and Voluntary Workers with the British Forces, Middle East.

	d.  A photograph, dated 13 November 2008, of an arm with markings of an  entrance wound and an exit wound. 

	e.  A medical statement, dated 24 August 2009, wherein a medical doctor states that he examined the FSM on 24 August 2009 and determined that the old scars on his right forearm are consistent with missile (bullet) entry and exit wounds.  He adds that the FSM told him this happened during his Army service in World War II.

	f.  A sworn statement, dated 3 November 2009, wherein the FSM states that he arrived in North Africa in July 1941 and served with the British 8th Hussars on the Western Desert front as a technical representative.  In September 1941, his 

convoy came under aerial attack by German aircraft and he was struck in the right forearm by a tracer bullet from a German aircraft.  He received medical treatment at a mobile British Army aid station and then returned to duty.  Due to the secret nature of his assignment, no documentation was provided to indicate he was participating in combat operations for the British Army when the United States was not officially at war at the time.

16.  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.

17.  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 by medical personnel, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the records of his father, a FSM, should be corrected to show award of the Purple Heart.

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 must be taken 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 award.

3.  The criteria for award of the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.  

4.  The FSM’s honorable service prior to, during, and after World War II is not in question.  Additionally, his personal chronicles and recollection of events were noted.  However, the chronicle of events in the form of a sworn affidavit, which was prepared and/or submitted more than 68 years after the fact, do not in itself conclusively prove he was wounded or injured as a result of hostile action.

5.  Notwithstanding the FSM's sincerity, there is no evidence in his record that shows he was wounded or injured as a result of hostile action or treated for such wounds.  Regrettably, absent evidence which conclusively shows he sustained wounds or injuries as a result of hostile action, and 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 the Purple Heart to the FSM in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  __x_____  __x______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of the FSM's service in arms.



      ___________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)                                         AR20090020482



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ABCMR Record of Proceedings (cont)                                         AR20090020482



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