IN THE CASE OF:	  

		BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100010752 


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 he suffered combat injuries from the enemy.  

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

* Veterans Affairs (VA) Statement in Support Claim
* WD AGO Form 53-55 (Enlisted Record and Report of Separation)
* Letter from a physician at the Medical College of Wisconsin
* VA Rating Decision
* VA awards benefit letter

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 the applicant’s 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 23 July 1942 and entered active service on 5 August 1942.  His WD AGO Form 53-55 also shows he served in the European Theater of Operations from 18 October 1943 to 17 September 1945.  

4.  His WD AGO Form 53-55 shows the entry "None" in item 34 (Wounds Received in Action).  There is no evidence which indicates he sustained wounds as a result of hostile action.  

5.  The applicant was honorably discharged on 13 October 1945.  His WD AGO Form 53-55 does not show he was awarded the Purple Heart.  

6.  In the VA Statement in Support of Claim, the applicant indicated the following:

* He suffered severe hearing loss due to a traumatic explosion while serving in Troop F, 42nd Calvary Division in Northern Germany
* A tank exploded next to him and he is now service connected with the VA for both hearing loss and Post Traumatic Stress Disorder (PTSD)
* He immediately started receiving care for these conditions at the Milwaukee VA after the war

7.  In support of his claim, the applicant provided a letter from a physician from the Medical College of Wisconsin, dated 21 May 2009.  The physician described the applicant’s chronic medical problems and provided information related to the applicant’s request for a Purple Heart as follows:

   a.  The applicant was a member of Troop F, 42nd Calvary Division, a mechanized reconnaissance squadron that participated in combat operations in Northern Germany;

	b.  A panzer foust (tank fist) exploded in the turret of the vehicle just in front of the applicant’s tank which contributed to his hearing loss and resulted in persistent symptoms of PTSD;

	c.  The applicant sought medical care at the Woods VA Hospital for symptoms of PTSD within a few days of discharge from active duty in October 1945 and was hospitalized for two months; and 

	d.  Based on the applicant’s narrative account of these substantial combat-related injuries, it seems clear he deserves the Purple Heart.

8.  The VA letter, dated 5 October 2007, indicates the applicant’s disability was increased from 20 percent to 100 percent for bilateral hearing loss.  His disability rating for PTSD remained 50 percent.  

9.  His VA Rating Decision indicated he was granted service connection for bilateral hearing loss (100 percent), PTSD (50 percent), tinnitus (10 percent), and tonsillectomy (0 percent).  

10.  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.  This regulation states that when contemplating award of the Purple Heart, the key issue that commanders must take into consideration is the degree in 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 award.  

11.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he suffered combat injuries from the enemy. However, there are no medical documents which indicate the applicant was wounded as a result of hostile action during World War II.  In addition, his WD AGO Form 53-55 does not reflect he received any wounds in action.  

2.  The 5 October 2007 letter from VA which indicated the applicant was granted service connection (100 percent) for hearing loss is acknowledged.  However, the VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  The VA rating decision is insufficient to show the applicant's injuries were incurred as a result of hostile action.

3.  The applicant’s self-authored statement and letter from the physician were considered.  Regrettably, these documents alone are not sufficient to meet the regulatory burden of proof necessary to support 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)                                         AR20100010752





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ABCMR Record of Proceedings (cont)                                         AR20100010752



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