BOARD DATE: 17 June 2010
DOCKET NUMBER: AR20090021917
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 that his deceased father, a former service member (FSM), be awarded the Purple Heart.
2. The applicant states his father was injured as a result of combat operations during World War II.
3. The applicant provides copies of:
* his parents' marriage certificate
* his birth certificate
* his father's death certificate
* his mother's death certificate
* a letter dated 15 December 1945 from the Department of Veterans Affairs (VA)
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 FSM's military personnel records show he was inducted into the Army of the United States on 25 November 1942 and entered active service on
2 December 1942. He completed the training requirements and he was awarded the military occupational specialty of 745 (Rifleman).
3. The FSM arrived in the European Theater of Operations (ETO) on 14 July 1944. He departed the ETO on 11 January 1945 and arrived in the U.S.
on 1 February 1945.
4. On 8 October 1945, the FSM swore an affidavit describing how he injured his left foot. He stated as he was returning to his foxhole he stumbled and fell and the rifle he was carrying accidently discharged and the bullet entered his left foot.
5. On 2 November 1945, a line of duty investigation determined the FSM accidently shot himself in the left foot on 11 November 1944 in the Hurtgen Forest of Germany. The investigation found his injury to be in the line of duty and not due to his own misconduct.
6. On 8 November 1945, the FSM was discharged with a Certificate of Disability. He had completed 2 years, 11 months, and 7 days of active service that was characterized as honorable. Item 34 (Wounds Received in Action) of his WD AGO Form 53-55 (Enlisted Record and Report of Separation, Honorable Discharge) contains the entry "None."
7. A letter from the VA, dated 15 December 1945, advised the FSM he was awarded a pension based on the condition of his left foot that resulted from a gunshot wound, incurred in combat.
8. Army Regulation 600-45 (Decorations), then in effect, which governed the award of Army decorations until 23 August 1951, stated the Purple Heart was awarded citizens of the United States serving with the Army, who are wounded in action against an enemy of the United States, or as a direct result of an act of such enemy, provided such wound necessitated treatment by a medical officer.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his father should be awarded the Purple Heart for an injury he received during combat operations.
2. The affidavit sworn by the FSM states his rifle accidently discharged wounding him in his left foot. The line of duty investigation determined the FSM accidently shot himself in the left foot and the injury was in the line of duty, not due to his own misconduct.
3. The VA only determines if a disability was incurred while a member was in an active duty status. The VA's decision to grant the FSM a pension does not indicate whether or not his disability was incurred as a result of action against an enemy.
4. The preponderance of evidence in this case indicates the FSM's injury was not received in action against a hostile enemy, or as a direct result of an act of such an enemy. Therefore, there is insufficient evidence in this case to award the Purple Heart.
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's father in service to our Nation. The applicant and all Americans should be justifiably proud of his father'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) AR20090021917
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ABCMR Record of Proceedings (cont) AR20090021917
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