IN THE CASE OF:	  

		BOARD DATE:	  17 March 2011

		DOCKET NUMBER:  AR20100022147 


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, in effect, through his Member of Congress, award of the Purple Heart.  

2.  The applicant states the nature of the friendly fire gunshot wounds he received while in Germany during World War II (WWII) fits the criteria for entitlement for award of the Purple Heart in the spirit of applicable executive orders and public law not in effect at the time of his service.  His unit had been pushing east through Germany, overcoming enemy resistance but also regularly subject to sniper fire.  Inexperienced Soldiers were often assigned to the front line due to the intensity of the unit movements.  While en route to Fulda, he was shot twice through his upper thigh by a young, frightened Soldier who was reloading his automatic weapon.  This incident was battle-related.  He recently learned that friendly fire entitles a Soldier to the Purple Heart.

3.  The applicant provides copies of the following documents:

* his WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge)
* his Honorable Discharge Certificate
* two statements from his former first sergeant (1SG) and a former squad member
* a handwritten paper showing he was WIA (Wounded in Action)
* a WD AGO Form 1 (Morning Report)
* a map of the 28th Infantry Regiment's movement in Germany

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 on 11 August 1943 and he entered active service in Boston, MA on 1 September 1943.  This form also shows that at the time of his separation, he held military occupational specialty 345 (Light Truck Driver) and he was assigned to Company I, 328th Infantry Regiment.

4.  His WD AGO Form 53-55 shows he departed the continental United States (CONUS) on 24 July 1944 and he arrived in the European Theater of Operations (ETO) on 1 August 1944.  He departed the ETO on 12 January 1946 and arrived back in CONUS on 22 January 1946.

5.  He completed 10 months and 27 days of continental service and 1 year, 5 months, and 29 days of foreign service.  He was honorably discharged on 27 January 1946.

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


7.  Item 32 (Battles and Campaigns) of his WD AGO Form 53-55 shows he participated in the Northern France, Rhineland, Ardennes, and Central Europe campaigns during his service in WWII.

8.  Item 33 (Decorations and Citations) of his WD AGO Form 53-55 shows he was awarded the Army Good Conduct Medal, American Theater Campaign Medal, the European-African-Middle Eastern Campaign Medal, and World War II Victory Medal.

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

10.  He submitted a map of the 328th Infantry Regiment's movements in Germany as well as the following documents:

	a.  a statement from a former squad member who states he was a technical sergeant with the 328th Infantry and his unit accompanied the 4th Armored Division, fighting northeast through Germany.  The applicant was his squad leader in Company I.  They were actively engaged in skirmishes and in grave danger from enemy fire.  On or about 6 April 1945, near the town of Struth, the applicant took two bullets to the upper and inner thigh.  He was evacuated by the 114th Medical Battalion for treatment in France and he returned to the unit a few days later.

	b.  a statement from the former unit 1SG who states he was the 1SG of the 328th Infantry and his unit accompanied the 4th Armored Division, fighting northeast through Germany.  The applicant was a squad leader in Company I.  They were actively engaged in skirmishes and in grave danger from enemy fire.  On or about 6 April 1945, near the town of Struth, the applicant took two bullets to the upper and inner thigh.  On that same day, he, the 1SG, reported the applicant WIA and he was evacuated to behind enemy lines by the 114th Medical Battalion for treatment in France and he returned to the unit a few days later.

	c.  a loose paper with a stamped date of 6 April 1945 that lists the applicant's rank and his name with the entry "WIA" next to his name.

	d.  WD AGO Form 1, dated 10 April 1945, that shows the applicant's name, service number, and rank and the entry "Slightly wounded [the words "in action" are struck out] in Germany near Struth 6 Apr/45 (NB [non-battle]) Lost to Hosp Designation and Location Unknown." 


11.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.  Additionally, this regulation 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.

	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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant sustained gunshot wounds to his thigh on or about 6 April 1945 when another Soldier accidently discharged his weapon while reloading.  However, there is no indication that the accidental discharge of the weapon occurred in the heat of battle. 

2.  By regulation, accidents, to include explosive and other 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.

3.  Notwithstanding the applicant's sincerity as well as that of the former 1SG and unit member, 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.

4.  This action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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)                                         AR20100022147



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100022147



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1