IN THE CASE OF:	  

		BOARD DATE:	    10 November 2010

		DOCKET NUMBER:  AR20100013931 


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 a second award of the Purple Heart.

2.  The applicant states, in effect, he was wounded a second time by friendly fire when he was shot while being transported in a Red Cross ambulance.  He contends when he was wounded on 27 January 1945, he was initially treated for his leg wounds in a school converted to a hospital, and after three days he was put into an ambulance to be transported to the next hospital.  The ambulance driver got lost, darkness fell, and the road guards gave the driver orders to halt two times but he stepped on the gas peddle.  The guards fired on the ambulance and he was shot again in his left leg and both feet.  The term "friendly fire" was not used during World War II.  His discharge document only shows one wound.

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

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 was inducted into the Army of the United States on 28 April 1943 and he entered active duty on 5 May 1943.  He departed the continental United States (CONUS) on 19 October 1944 en route to the Asiatic-Pacific Theater of Operations (APTO).  He arrived in the APTO on 8 November 1944 and served until 17 April 1945.  He returned to CONUS on 12 May 1945 and he was subsequently honorably discharged on 17 August 1946.  

4.  The applicant's WD AGO Form 53-55 shows the Army Good Conduct Medal, Purple Heart, World War II Victory Medal, American Campaign Medal, Asiatic-Pacific Campaign Medal with two bronze service stars, Philippine Liberation Ribbon, and one Overseas Service Bar as authorized awards.  Item 34 (Wounds Received in Action) of his WD AGO Form 53-55 shows the entry “LUZON P I  
27 JAN 1945.”  

5.  The Office of The Surgeon General Hospital List shows the applicant was hospitalized on 27 January 1945 in the Southwest Pacific as a battle casualty for a wound to his leg.

6.  There is no evidence of record which shows the applicant was wounded a second time as a result of hostile action during World War II.

7.  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.

8.  Included as part of the Department of Defense Appropriations Act for fiscal year 1994 was an amendment to the rules governing award of the Purple Heart.  


While the original rules established that the Purple Heart would be awarded to individuals killed or wounded as a result of hostile action the amendment enabled the Secretaries of each department to award the Purple Heart to members of the armed forces who were killed or wounded in action by weapons fire, while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States.  This ruling granted the service Secretaries the authority to award the Purple Heart to individuals directly engaged in armed conflict who were killed or wounded as a result of "friendly fire."

9.  Army Regulation 600-8-22 provides for award of the Purple Heart to individuals wounded or killed as a result of “friendly fire” in the “heat of battle” as long as the “friendly” projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was wounded a second time on 30 January 1945 by friendly fire when he was shot by road guards while being transported in a Red Cross ambulance.  

2.  Medical evidence of record shows the applicant was wounded in action on 
27 January 1945 in Luzon and his WD AGO Form 53-55 shows he received the Purple Heart.  There is no evidence of record, such as a second Office of the Surgeon General Hospital List, which shows he was wounded a second time either as a result of hostile action or as a result of a friendly fire incident.  

3.  In any case, since the applicant was not in the "heat of battle," it appears his second injuries would have been considered the result of a terrible accident rather than considered a "friendly fire" incident that met the criteria for award of the Purple Heart as defined by the governing regulation.

4.  Regrettably, there is insufficient evidence on which to base a second 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)                                         AR20100013931



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ABCMR Record of Proceedings (cont)                                         AR20100013931



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