IN THE CASE OF:
BOARD DATE: 7 April 2011
DOCKET NUMBER: AR20100023813
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, the daughter of a deceased former service member (FSM), requests the Purple Heart be added to her late father's WD AGO Form 53-55 (Enlisted Record and Report of Separation).
2. The applicant states:
* The Purple Heart is not listed in item 33 (Decorations and Citations) of her father's honorable discharge
* The Purple Heart was awarded to him
* He was injured in action in April 1945 near Aachen, Germany
* He sought medical aid at once
* The Purple Heart was sent home to his wife (her mother)
* He had it his whole life and displayed it proudly with his other Army medals
3. The applicant provides:
* His WD AGO Form 53-55
* His WD AGO Form 33 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty or Retirement)
* Clinical records, dated 1945
* His WD AGO Form 100 (Separation Qualification Record)
* His obituary
* Her Virginia driver's license
* Her birth certificate
* Her mother's death certificate
* His death certificate
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The FSMs 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 FSMs 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 FSM was inducted into the Army of the United States on 4 January 1944 and entered active duty on 25 January 1944. He served in the European Theater of Operations from 1 September 1944 to 22 June 1945. He was honorably discharged on 20 November 1945.
4. His WD AGO Form 53-55 does not show the Purple Heart as an authorized award. Item 34 (Wounds Received in Action) of his WD AGO Form
53-55 shows the entry, "None."
5. There is no evidence of record which shows the FSM was awarded the Purple Heart or was wounded as a result of hostile action during World War II.
6. She provided service medical records, dated August/September 1945, which state, in pertinent part:
* the FSM was admitted to the hospital on 20 August 1945 with a chief complaint of backache, headache, and stomach trouble
* he dates the onset of his present illness to April 1945 while in Germany, at which time he struck his head on an over-hanging bar in an underpass and it knocked him unconscious and when falling, he fell across a pipe and injured his back
* he was treated for the injury but not hospitalized
* he was diagnosed with psychoneurosis (no disease found) and returned to duty
7. These service medical records do not show the FSM was injured as a result of hostile action.
8. She also provided the FSM's WD AGO Form 38, dated 20 November 1945. Item 11 (List all significant diseases, wounds, and injuries) of his WD AGO Form 38 states "Back injury, concussion incurred while in action near Aachen, April 1945 - Complains of low back pain."
9. 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.
DISCUSSION AND CONCLUSIONS:
1. There are no orders for the Purple Heart in the available records. Although the WD AGO Form 38 provided by the applicant states the FSM sustained a back injury and concussion while in action near Aachen, Germany in April 1945, she also provided service medical records which do not show he was injured as a result of hostile action in April 1945 in Germany. The service medical records state he struck his head on an over-hanging bar in an underpass, was knocked unconscious, and when falling he fell across a pipe and injured his back in April 1945 in Germany.
2. In the absence of orders or other evidence of record showing the FSM was injured or treated for wounds as a result of hostile action during World War II, the entry on the WD AGO Form 38 provided by the applicant is not sufficient as a basis for adding the Purple Heart to the FSM's WD AGO Form 53-55.
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) AR20100023813
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ABCMR Record of Proceedings (cont) AR20100023813
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