IN THE CASE OF:	

		BOARD DATE:	  03 June 2010

		DOCKET NUMBER:  AR20090020876 


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 wounded while serving in combat in Stuttgart, Germany, on or about 5 April 1945, but he was never awarded the Purple Heart.  At the time, when he left military service, his only priority was to get home to his family.  The last thing on his mind was awards or decorations.

3.  The applicant provides the following documents:

* A copy of his WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge), dated 19 April 1946
* A copy of a letter, dated 12 May 1945 from The Adjutant General to his wife
* A copy of a WD AGO Form 234 (Hospital Report), dated 19 July 1945
* A copy of a WD AGO Form 52 (Hospital Receiving Slip), dated 24 April 1945
* A copy of a WD AGO Form 55 (Abbreviated Clinical Record), dated 4 May 1945
* Copies of various hand-written medical documents

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 his 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’s WD AGO Form 53-55 shows he was inducted into the Army of the United States on 10 November 1942 and he entered active duty in Peoria, IL, on 24 November 1942.  This form also shows at the time of his separation, he held military occupational specialty 264 (X-Ray Technician) and he was assigned to the 398th Infantry.

4.  His WD AGO Form 53-55 shows he departed the continental United States (CONUS) on 15 March 1945 and arrived in the European-African-Middle Eastern (EAME) Theater of Operations on 29 March 1945.  He departed the EAME Theater of Operations on 1 April 1946 and arrived back in CONUS on 12 April 1946.

5.  He completed 2 years, 4 months, and 12 days of continental service and 1 year and 28 days of foreign service.  He was honorably separated on 19 April 1946.

6.  Item 31 (Military Qualifications and Date) of his WD AGO Form 53-55 shows he was awarded the Combat Infantryman Badge.

7.  Item 32 (Battles and Campaigns) of his WD AGO Form 53-55 shows he participated in the Central Europe campaign during his service in World War II.

8.  Item 33 (Decorations and Citations) of his WD AGO Form 53-55 does not show award of the Purple Heart.

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

10.  His hospital admission cards created by the Office of the Surgeon General for the year 1945 shows he suffered a non-battle injury, on 25 April 1945, in the form of a perforating pistol bullet wound to his chest while he was handling a firearm.  He was admitted to a hospital for treatment and he was returned to duty in July 1945.

11.  The applicant submitted the following documentary evidence in support of his request:

	a.  A copy of a WD AGO Form 52, dated 4 May 1945 that shows he suffered a perforating gunshot wound to his left chest on 25 April 1945 when he accidently discharged a German pistol.  He initially underwent surgery and he was subsequently admitted to the 2nd French Mobile Surgical Hospital on 4 May 1945 for further treatment.

	b.  A copy of a message, dated 12 May 1945, from The Adjutant General to his spouse, informing her that he was making normal improvement subsequent to his gunshot wound to the chest.

	c.  A copy of a WD AGO Form 234, dated 19 July 1945, showing he was returned to duty on that date.

	d.  A copy of a WD AGO Form 55, dated 4 May 1945, showing he suffered a perforating wound of the left chest on 24 April 1945 and that he underwent an operation on the same day.  The form also shows the record of treatment throughout the month of May 1945.

	e.  A copy of hand-written notes regarding his treatment during April and May 1945.

12.  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.

13.  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:

	a.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:  injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and/or concussion injuries caused as a result of enemy generated explosions.

	b.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows:  frostbite or trench foot injuries; heat stroke; food poisoning not caused by enemy agents; chemical, biological, or nuclear agents not released by the enemy; battle fatigue; disease not directly caused by enemy agents; accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; self-inflicted wounds, except when in the heat of battle and not involving gross negligence; post-traumatic stress disorders; and/or jump injuries not caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the Purple Heart.

2.  The evidence of record shows he sustained a gunshot wound to his left chest on 25 April 1945 when he accidently discharged a German pistol.  However, there is no indication that the accidental discharge of the pistol occurred in the heat of battle.  He initially underwent surgery and he was later admitted to the 2nd French Mobile Surgical Hospital on 4 May 1945 for treatment.  He was subsequently released from the hospital on 19 July 1945.

3.  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 the sole justification for the award.

4.  By regulation, accidents, to include explosive and other accidental wounding not related to or caused by enemy action and self-inflicted wounds, except when in the heat of battle and not involving gross negligence, are examples of injuries or wounds which clearly do not justify award of the Purple Heart.

5.  Regrettably, absent evidence which conclusively shows that the applicant 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 an insufficient basis for awarding the Purple Heart to the applicant.

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 applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his 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)                                         AR20090020876



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090020876



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1