IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100008852 


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 correction to his WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge) to show award of the Purple Heart and his unit of assignment as Company C, 264th Engineer Battalion.

2.  The applicant states he was injured during combat operations.  After receiving medical treatment from Catholic nuns, he states he returned and found his original unit of assignment had moved.  He states he should receive the Purple Heart for his wounds and asks that his original unit (Company C, 246th Engineer Battalion) be shown as his organization on his discharge documents.

3.  The applicant provides the following documentary evidence in support of his application:

	a.  WD AGO Form 53-55 with a separation date of 8 December 1945;

	b.  an Honorable Discharge Certificate, dated 8 December 1945;

	c.  two military passes authorizing the applicant passes to Riems, France;

	d.  two pictures of Catholic nuns; and 

	e.  a newspaper clipping with two photographs of military equipment, undated. 


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 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 to conduct a fair and impartial review of this case, including the applicant's WD AGO Form 53-55 in addition to documents that he provided. 

3.  The available evidence of record shows the applicant was inducted into the Army of the United States on 14 April 1943 and entered active duty on 21 April 1943.  He completed basic combat training.

4.  The applicant served in the European-African-Middle Eastern theater of operations from on or about 4 November 1943 to 27 November 1945.  He served in the following five campaigns:  

* Normandy (6 June - 24 July 1944)
* Northern France (25 July - 14 September 1944)
* Rhineland (15 September 1944 - 21 March 1945)
* Ardennes-Alsace (16 December 1944 – 25 January 1945)
* Central Europe (22 March – 11 May 1945)

5.  On 8 December 1945, the applicant was honorably discharged due to demobilization of the Armed Forces.  He received a WD AGO Form 53-55 upon his discharge that shows:

	a.  item 6 (Organization) "CO D 355 ENGRS" (Company D, 355th Engineer Battalion);

   b.  item 32 (Battles and Campaigns) - "Normandy, Northern France, Ardennes, Rhineland, Central Europe";

	c.  item 33 (Decorations and Citations) - "Victory Medal, European-African-Middle Eastern Theater Ribbon with one silver battle star, 4 Overseas Service Bars, Good Conduct Medal"; and

	d.  item 34 (Wounds Received in Action) - "None."

6.  In support of his application, the applicant provided two photographs and a newspaper clipping as evidence that he was treated for wounds incurred as a result of his combat service.  The photographs of the Catholic nuns do not contain names, dates or locations and neither do the newspaper clippings.  From the newspaper clipping, one can observe a static display of military equipment with mounted horses and men dressed in suits.  The newspaper clipping is in a foreign language either German or Dutch.

7.  The applicant also provide two ETO AG Forms 27 showing he was authorized a military pass to visit Reims, France from 1830 to 2400 hours on 28 September and again on 11 October 1945 from 1200 to 2400 hours.  His organization listed on these two forms was Company C, 264th Engineer Battalion.   

8.  References:

   a.  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 to citizens of the United States serving with the Army who were 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.  This regulation stated that for the purpose of considering an award of the Purple Heart, a "wound" is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.

   b.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for wounds 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.  An example of an injury which does not justify award of the Purple Heart are accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

	c.  The Office of the Surgeon General files, a health record research project, involved transposing hospital admission card data from the periods of World War II and the Korean Conflict onto magnetic tape.  The best available estimation of the completeness of this project is that it captured at least 95 percent of all combat casualty hospital admissions.  The applicant's name is not contained in these files.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is entitled to award of the Purple Heart for his wounds and subsequent medical treatment provided by Catholic nuns during combat operations in Europe during World War II.  In addition, he contends his organization was Company C, 264th Engineer Battalion not Company D, 355th Engineers as shown on his discharge documents. 

2.  The applicant's WD AGO Form 53-55 shows that no combat wounds were recorded on his separation document.  

3.  The requirement for award of the Purple Heart is that a Soldier must have received medical treatment by medical personnel and that the injury or wound must be documented in medical records.

4.  There is insufficient evidence to show the applicant sustained a wound as a result of hostile action.  There is no evidence to show that medical personnel treated the applicant and that this treatment was made a matter of official record.  Therefore, regrettably, there is no basis for awarding the applicant the Purple Heart.

5.  While the applicant did provide two military forms showing he had an authorized absence from Company C, 264th Engineer Battalion in September and October 1945, these two forms do not represent sufficient evidence to correct his record to show he was assigned to this unit.  As the applicant's complete service records were probably burned in 1973, his complete unit assignment history is unknown to the Board.  Therefore, it would be inappropriate to change a facially valid document for it is presumed that upon his separation from the U.S. Army, the applicant's last unit of assignment was with Company D, 355th Engineer Battalion.  

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

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)                                         AR20100008852





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)