IN THE CASE OF:	  

		BOARD DATE:	  12 April 2011

		DOCKET NUMBER:  AR20100025390 


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 that his deceased father's records be corrected by awarding him the Purple Heart. 

2.  The applicant states his father, the deceased former service member (FSM), was wounded in combat at Anzio, Italy, captured by the Germans in February 1944, and repatriated in April 1945.  The National Personnel Records Center (NPRC) has advised him that the FSM's records were destroyed in the 1973 NPRC fire.  

3.  The applicant provides copies of the FSM's death certificate, a WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge), a 1947 Veterans Administration (VA) benefits development letter, a 1950 VA benefits increase award letter, a 1947 letter from a fellow Soldier, and a list of service members from the FSM's unit.

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 FSM's service records are reported as lost or destroyed in the fire at the National Personnel Records Center in 1973.  Information herein was obtained from documents provided by the applicant.

3.  The FSM's service medical and dental records are believed to have been on permanent loan to the Department of Veterans Affairs and are not available for review.  These records would have been retired to the VA archives following the FSM's death.  The FSM passed away on 24 November 1974.  

4.  The FSM's WD AGO Form 53-55 provides the following:

	a.  active duty service from 2 May 1942 through 10 October 1945;

	b.  assignment to Company A, 30th Infantry Regiment, 3rd Infantry Division;

	c.  participation in the French Morocco, Tunisia, and Naples-Foggia campaigns;

	d.  award of the European-African-Middle Eastern Campaign Medal with three bronze service stars;

	e.  at item 34 (Wounds Received in Action) states "None";

	f.  the reason and authority for separation is shown as: Certificate of Disability Discharge (CDD), "2nd Ind." Headquarters, William Beaumont General Hospital, El Paso, Texas, dated 8 October 1945; and

	g.  the FSM was discharged on a temporary service record.

5.  The 16 April 1947 VA letter requested that the FSM clarified when, where, and under what circumstances he received his reported gunshot wound to his left thigh.  It states an Army treatment showed the wound came from a rifle whereas the VA examination reported it was from a German automatic pistol.  The answer to this letter is not of record.

6.  The 11 September 1950 VA letter stated the FSM's service connected gunshot wound to the left thigh was increased with no change to his other service connected conditions of a disability of the nervous system, duodenal ulcers with gastroduodenitis, malaria, and malnutrition. 
7.  The letter from the FSM's fellow service member does not indicate personal knowledge of the FSM's wound.

8.  Army Regulation 600-8-22 (Military Awards) states 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.

9.  Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states his father, the deceased former service member (FSM), was wounded in combat at Anzio, Italy, captured by the Germans in February 1944, and repatriated in April 1945.  The National Personnel Records Center has advised him that the FSM's records were destroyed in the 1973 NPRC fire.  

2.  The FSM's WD AGO Form 53-55 does not record any wounds received in action or that he was a prisoner of war.

3.  While the VA granted the FSM a disability evaluation for a gunshot wound to the left thigh, the limited records do not show that this wound was the result of hostile action or sustained while in action against the enemy.  

4.  Therefore, there is insufficient evidence to award the FSM the Purple Heart. 

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)                                         AR20100025390





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ABCMR Record of Proceedings (cont)                                         AR20100025390



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