DOCKET NUMBER:  AR20100025855


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 award of the Purple Heart.

2.  He states that he should have been awarded the Purple Heart due to being injured twice while serving in World War II.  On 22 November 1944, in the town of Hellmere, Germany, he was hit in his left leg with shrapnel from a German 88 artillery shell.  After receiving first aid, he returned to his unit on 23 November 1944.  The second time that he was wounded was on 22 February 1945.  He and five men were on a reconnaissance patrol near Omshide, Germany.  Unknown to them, there was snipers on their left flank.  They were pinned down and he was shot.  The bullet went through his jacket, sweater, across his chest, and pierced his flesh.  The holes in the sweater are shown in the picture he provides.  He saved that sweater after all these years.  

3.  He provides his WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) and a picture of the alleged sweater.

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 his records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record, and documentation submitted by the applicant, for the Board to conduct a fair and impartial review of this case.

3.  His available military records show he was inducted into the Army of the United States on 23 March 1943 and entered on active duty on 30 March 1943.  He completed training in military occupational specialty 745 (Rifleman).  He was assigned to Headquarters Company, 1st Battalion, 112th Infantry.  He served overseas in the European-African-Middle Eastern (EAME) Theater of Operations from 18 September 1944 to 14 August 1945.

4.  His available records contain a hospitalization file listing (microfiche 049, pages 83 and 94) created by The Office of The Surgeon General and two hospital admission cards for the years 1944 and 1945.  The cards show he was diagnosed with pneumonia and hospitalized from December 1944 to January 1945, and diagnosed with a pilonidial cyst or sinus and hepatitis and hospitalized from August to September 1945.

5.  He was honorably discharged from active duty on 4 December 1945 for the convenience of the government at demobilization.  Item 31 (Military Qualification and Date) of his WD AGO Form 53-55 lists the Combat Infantryman Badge.  Item 33 (Decorations and Citations) lists the following awards:   the American Theater of Operations Medal, EAME Campaign Medal, Bronze Star Medal, and World War II Victory Medal.  Item 55 (Remarks) lists the Honorable Service Lapel Button.

6.  Item 34 (Wounds Received in Action) of his WD AGO Form 53-55 shows the entry, "None," to indicate he was not wounded while he served during World War II.

7.  There are no orders in his available service personnel records that show he was awarded the Purple Heart.  There is no evidence in his records that shows 

he was wounded or treated for wounds as a result of hostile action during World War II.

8.  He provided a copy of a picture alleged to be of the sweater he was wearing on 22 February 1945. 

9.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against the 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, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  By regulation, to be awarded the Purple Heart it is necessary to establish that a Soldier was wounded or injured in action, or injured while held as a prisoner of war, or while being taken captive.  There is no evidence of record and the applicant has provided insufficient evidence which shows that he was wounded or treated for wounds as a result of hostile action during World War II.  

2.  The documentation provided by the applicant was carefully considered; however, the overall merits of the case including the submissions are insufficient as a basis to grant his request.  In all cases the burden of proof rests with the applicants to submit substantiating evidence of their entitlement for award of the Purple Heart in the absence of the evidence of record.

3.  In view of the foregoing, there is no basis for granting his request.

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)                                         AR20100022127



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ABCMR Record of Proceedings (cont)                                         AR20100025855



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