IN THE CASE OF:	  

		BOARD DATE:	    28 April 2011

		DOCKET NUMBER:  AR20100026055 


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 correction of his record to show award of the Purple Heart (PH).

2.  The applicant states, in effect:

	a.  he was wounded in his right hip in Vietnam during a mortar attack on 
24 March 1945;

	b.  the medic reported his wounding to the battery officer on the morning following the attack; and

	c. the PH is not reflected on his DD Form 214.

3.  The applicant provides:

* Standard Form 180 (Request Pertaining to Military Records)
* WD AGO Forms 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) issued on 8 December 1945 and 25 March 1947
* Department of Veterans Affairs (VA) Rating Decision
* Self-authored statement
* three witness statements
* Doctor's statement


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 for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center (NPRC) in 1973.  It is believed his records were lost or destroyed in that fire.  This case is being considered using the NPRC reconstructed record which primarily consists of two WD AGO Forms 53-55 and the documents the applicant provided.

3.  The applicant's WD AGO Form 53-55, issued on 8 December 1945, shows he was initially inducted into the Army of the United States on 25 February 1943 and entered active duty on 3 March 1943.  It also shows he held military occupational specialty 601 (Gunner) and he arrived in the European Theater of Operations on 4 September 1944.  On 8 December 1945, he was honorably discharged for the purpose of enlisting in the Regular Army (RA).

4.  Item 33 (Decorations and Awards) of the WD AGO Form 53-55 issued on 8 December 1945 contains the entry "None."  Item 34 (Wounds Received in Action) of the applicant's WD AGO Form 53-55 contains the entry "None."

5.  On 9 December 1945, the applicant enlisted in the RA and continued to serve overseas.  He was honorably discharged on 25 March 1947 and he completed a total of 4 years and 1 month of creditable active service.  Item 33 of the WD AGO Form 53-55 shows he earned the World War II Victory Medal and Army of Occupation Medal.  Item 34 contains the entry "None."

6.  There are no documents in the NPRC file that indicate the applicant was ever recommended for or awarded the PH by proper authority while serving on active duty.  There are also no medical treatment records or hospital reports on file that indicate he was ever treated for a combat-related wound or injury during his active duty tenure.
7.  The applicant provides three witness statements from individuals who attest:

   a.  they served with the applicant during World War II;
   
   b.  after crossing the Rhine River the applicant sustained a wound to the right side of his hip or upper buttocks when he was hit by shrapnel from heavy artillery fire;
   
   c.  a medic bandaged the applicant's wound and gave him medication; and
   
   d.  the applicant refused further medical treatment at a hospital indicating he would care for his wound.
   
8.  The applicant provides a VA rating decision that shows he was granted a twenty percent service-connected disability rating for a shell fragment wound to his right gluteal muscle.  

9.  The applicant provides a statement dated 29 October 2009 from a doctor who indicates he has treated the applicant since 1975 for chronic pain in his right hip and lumbar region.  He also states he periodically continues to treat the applicant for hip deformity and lumbar derangement accompanied by recurring muscle spasms with pain.

10.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states that in order to award a PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that the wound was treated by medical personnel, and a record of this medical treatment must have been made a matter of official record.

11.  Army Regulation 600-8-22 also states, when contemplating an award of the PH, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  While direct or indirect participation in combat operations is a necessary prerequisite, it is not the sole justification for award of the PH.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contends he was awarded the PH.

2.  By regulation, in order to support award of the PH there must be evidence the wound for which the award is being made was received as a result of enemy action, the wound must have required medical treatment by military medical personnel, and a record of this treatment must have been made a matter of official record.

3.  The available evidence of record fails to indicate he was wounded in action or treated for a combat-related wound or injury by military medical personnel.  There is also no evidence available to indicate he was recommended for or awarded the PH by proper authority while serving on active duty.

4.  Absent documentary evidence to corroborate the applicant's witness statements and the evidence he provided the regulatory burden of proof necessary to support correction of his record to show award of the PH has not been met.

5.  The applicant and all others concerned should know this decision regarding award of the PH 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)                                         AR20100026055



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100026055



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1