BOARD DATE:	  7 October 2010

		DOCKET NUMBER:  AR20100011327 


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 served with A Company, 152nd Infantry, 38th Division in the Philippines during World War II (WWII).  They were setting up the regimental objectives when they started receiving incoming fire.  He dove into a shell crater and injured his scalp.  His sergeant sent him back to the aid station where he received 10 to 12 stitches that sewed his head together.  This was in May or June 1945.  He also states if his medical records do not substantiate this diving incident, he does not wish to pursue the issue. 

3.  The applicant provides a copy of his WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge).

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 and he entered active duty in Cuero, TX, on 28 September 1944.  This form also shows at the time of his separation, he held military occupational specialty 604 (Light Machine Gunner) and he was assigned to Headquarters Company, 1st Battalion, 343rd Infantry.  

4.  His WD AGO Form 53-55 shows he departed the continental United States (CONUS) on 26 March 1945 and arrived in the Pacific Theater of Operations (PTO) on 25 April 1945.  There is no indication of the date he departed the PTO or the date he arrived back in CONUS.  

5.  He completed 5 months and 28 days of continental service and 7 months and 26 days of foreign service.  He was honorably separated on 21 November 1945.

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

7.  Item 32 (Battles and Campaigns) of his WD AGO Form 53-55 shows he participated in the Luzon campaign during his service in WWII.

8.  Item 33 (Decorations and Citations) of his WD AGO Form 53-55 shows award of the Asiatic-Pacific Theater Ribbon. 

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

10.  His medical records are not available for review with this case.  

11.  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.

12.  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.

13.  The applicant's reconstructed records show he is entitled to awards that are not listed on his WD AGO Form 53-55.

14.  Army Regulation 600-8-22 provides for the following awards: 

	a  The Bronze Star Medal is awarded for heroism and for meritorious achievement or service in military operations against an armed enemy.  The Bronze Star Medal is authorized for each individual who was cited in orders or awarded a certificate for exemplary conduct in ground combat between 7 December 1941 and 2 September 1945 or whose achievement or service, during that period, was confirmed by documents executed prior to 1 July 1947.  An award of the Combat Infantryman Badge or the Combat Medical Badge is considered to be a citation in orders.  Therefore, the Bronze Star Medal is to be awarded to individuals who were authorized either badge for service during WWII.
	b.  The World War II Victory Medal was established by the act of Congress on 6 July 1945.  It was awarded for service between 7 December 1941 and 31 December 1946, both dates inclusive.  

	c.  The Asiatic-Pacific Campaign Medal (formerly referred to as the Asiatic-Pacific Theater Ribbon) is awarded for service in the Asiatic-Pacific Theater of Operations between 7 December 1941 and 2 March 1946.  The regulation also authorizes a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation or listed in item 32 of the WD AGO Form 53-55.  Authorized bronze service stars will be worn on the appropriate campaign or service medal including the Asiatic-Pacific Campaign Medal.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded 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 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.

3.  By regulation, accidents and/or 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.

4.  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.

5.  The evidence shows that the applicant’s records contain administrative errors which do not require action by the Board.  

	a.  He was awarded the Combat Infantryman Badge.  Therefore, he is entitled to award of the Bronze Star Medal based on award of this Combat Infantryman Badge and correction of his WD AGO Form 53-55 to show this award.

	b.  He served a qualifying period for award of the World War II Victory Medal. Therefore, he is entitled to award of the World War II Victory Medal and correction of his records to show this award.

	c.  He was awarded the Asiatic-Pacific Campaign Medal.  Furthermore, his records show he participated in one campaign during his service in WWII.  Therefore, he is entitled to award of a bronze service star to be affixed to his Asiatic-Pacific Campaign Medal.

6.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD), Arlington, VA, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/
RECOMMENDATION section below.

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 determined that administrative errors in the records of the individual concerned should be corrected.  Therefore, the Board requests that the CMSD-Arlington, VA administratively correct the records of the individual concerned as follows: 

* Awarding the applicant the Bronze Star Medal based on award of the Combat Infantryman Badge
* Adding to his WD AGO Form 53-55 the Bronze Star Medal, the World War II Victory Medal, and a bronze service star to be affixed his already- awarded Asiatic-Pacific Campaign Medal


3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by him 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)                                         AR20100011327



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ABCMR Record of Proceedings (cont)                                         AR20100011327



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