BOARD DATE:	  12 April 2011

		DOCKET NUMBER:  AR20100022994 


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:

The applicant defers his request and statement to counsel.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel, the applicant's former platoon leader, requests the applicant be awarded the Purple Heart.

2.  Counsel states, the applicant deserves and should be awarded the Purple Heart for wounds he suffered on 31 August 1944 near Reims while in his platoon.  After hospitalization, the applicant did not return to his unit, 146th Engineer Battalion, which could explain why the Purple Heart was not awarded. 

3.  Counsel provides:

* Statement from the applicant's son
* Two letters from counsel to his Member of Congress
* Applicant's Driver License
* Applicant's certification of a Power of Attorney
* Applicant's birth certificate
* Applicant's WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge)
* Applicant's Honorable Discharge Certificate
* Counsel's/Platoon Leader statement
* A second, notarized Counsel's/Platoon Leader statement
* Excerpts of counsels' book, titled, 146 Engineer Combat Battalion
* Letter from/to counsel to/from the National Personnel Records Center
* Copies of counsel's retired identification card
* Counsel's email to his Member of Congress

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.  His WD AGO Form 53-55 shows he was inducted into the Army of the United States on 21 January 1943 and entered active duty in Oklahoma City, OK on 28 January 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 Headquarters and Service Company, 614th Ordnance Base Automotive Maintenance Battalion.

4.  His WD AGO Form 53-55 also shows he departed the continental United States (CONUS) on 9 October 1942 [sic] (1943) and he arrived in the European theater of operations (ETO) on 17 October 1943.  He departed the ETO on 28 October 1945 and he arrived back in CONUS on 7 November 1945.

5.  He completed 8 months and 18 days of continental service and 2 years and 29 days of foreign service.  He was honorably separated on 14 November 1945.

6.  Item 31 (Military Qualifications and Date) of his WD AGO Form 53-55 shows he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar on 23 April 1943.
7.  Item 32 (Battles and Campaigns) of his WD AGO Form 53-55 shows he participated in the Normandy, Rhineland, and Northern France campaigns during World War II (WWII).

8.  Item 33 (Decorations and Citations) of his WD AGO Form 53-55 shows he was awarded the Army Good Conduct Medal, World War II Victory Medal, Distinguished Unit Badge, and the European-African-Middle Eastern Campaign Medal with three bronze service stars (designating his participation in three campaigns).

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

10.  His reconstructed record contains information from the hospital admissions cards, created by the Office of the Surgeon General (OTSG) shows:

	a.  He was admitted to a general hospital in the ETO on 27 January 1945 for psychoneurosis, neurasthenia (hysteria) and chronic shoulder pain.  The causative agent and circumstances are unknown.  He remained in the hospital for 51 days.  He was returned to duty in March 1945. 

	b.  He was treated at an aid station in the ETO on 23 April 1945 for pyelitis (inflammation of the pelvis of the kidney).  The causative agent and circumstances are unknown.  He remained in the hospital for 5 days and he was returned to duty.

	c.  He was admitted to a general hospital in the ETO on 6 June 1945 after he suffered a hernia (not strangulated).  The causative agent and circumstances are unknown.  He remained in the hospital for 51 days.  He was returned to duty in July 1945.

11.  The applicant and/or counsel submitted:

	a.  A statement, dated 30 November 2010, from the applicant's son who states that counsel, now a retired lieutenant colonel, was his father's former platoon leader.  He was present and witnessed first-hand his father being wounded by a Teller mine (German made anti-tank mine) explosion in or around late August or early September 1944.  His father was then hospitalized near Reims, France, but he did not return to the 146th Engineer Battalion.

	b.  Letters from counsel to his Member of Congress as well as to the National Personnel Records Center regarding the applicant's Purple Heart.  He also states his book documented the action of the battalion from an early demolition mission on D-Day until VE-Day in Czechoslovakia.    

	c.  Two statements, dated 29 October and 3 December 2010 from counsel.  He states he was the platoon leader of 3rd platoon, B Company, 146th Engineer Battalion.  On or about 1 September 1944, his platoon along with a platoon of the 2nd Ranger Battalion, was attached to a troop of the 38th Cavalry Squadron and in hot pursuit of retreating enemy soldiers.  Their job was to repair roads and remove road blocks while the rangers and the cavalry did the fighting.  They were often out in front of the infantry and in and among enemy soldiers.  They encountered a road block with two concealed Tellmarines.  He deactivated one and the second was only discovered when it destroyed their 2 1/2 Ton dump truck.  The applicant, the truck driver, was ejected out through the open top and landed in the road, causing him an abdominal rupture.  He went to the hospital near Rheims and was transferred to an Ordnance unit upon his release.  Had he returned to his old outfit, he would have received the Purple Heart.

	d.  Extract of a book, authored by counsel and is titled "146 Engineer Combat Battalion."  In his book, the author restates the events that led to the applicant's injury and states that "he learned in 1995, that the applicant had been hospitalized in Rheims with a rupture and probably a concussion."

12.  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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel contend he should be awarded the Purple Heart for wounds received during WWII.

2.  The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

3.  The applicant's service in WWII is not in question.  However:

	a.  there is no other evidence in the applicant's reconstructed record to corroborate or support the contention that he was wounded on 31 August 1944 or his treatment.  In his book, the author only learned of the applicant's treatment in 1995.  However, it is unclear how he learned of the treatment or what documentary evidence confirmed this treatment. 

	b.  the former platoon leader states the applicant suffered from a hernia and possibly a concussion.  However, the OTSG information shows he was treated on 27 January 1945, for hysteria and chronic shoulder pain; on 23 April 1945, for an inflammation; and on 6 June 1945 (nearly 10 months later), for a hernia.  There is no record of treatment for a concussion. 

4.  Notwithstanding the applicant's and his counsels' sincerity, the criteria for awarding him the Purple Heart has not been satisfied.  Regrettably, absent evidence which conclusively shows he 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 insufficient basis to award him the Purple Heart.

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 wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by her father in service to our Nation.  The applicant and all Americans should be justifiably proud of her father's 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)                                         AR20100022994



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ABCMR Record of Proceedings (cont)                                         AR20100022994



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