IN THE CASE OF:	  

		BOARD DATE:	  18 January 2011

		DOCKET NUMBER:  AR20100026060 


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 through his Member of Congress.

2.  The applicant states he was injured during World War II when enemy shrapnel hit his helmet and he received headaches and eventually vision problems from this incident.  He was also knocked unconscious from the shrapnel striking his helmet.  This incident happened during the Battle of Solomon Islands, Guadalcanal.  He served with Company G, 164th Infantry.  He adds that Dr. S____ W. L____ examined him in April 2010 when he complained about vision problems and the doctor related that they were due to severe trauma to the left side of his brain.  The applicant attributes that to the incident when he got hit by the enemy shrapnel.

3.  The applicant provides:

* letter regarding combat-related sickness/injuries
* Army Combat-Related Special Compensation (CRSC) decision letter
* letter from Dr. S____ W. L____
* letter related to his combat injury

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 records show he was born on 21 February 1921 and he enlisted in the North Dakota Army National Guard on 4 April 1938.  He completed various periods of active duty for training and he was honorably discharged on 1 February 1941.  He reenlisted for 3 years on 2 February 1941 and held military occupational specialty 651 (Platoon Sergeant).

3.  His records show he was inducted into the Army of the United States and entered active duty on 10 February 1941.  He served in the Asiatic-Pacific theater with Company G, 164th Infantry, as follows:

* he departed the United States on or around 12 March 1942 and arrived in New Caledonia through Australia on or about 20 March 1942
* he departed New Caledonia on or about 9 October 1942 and arrived in Guadalcanal on or about 13 October 1942
* he departed Guadalcanal on or about 11 March 1943 and arrived in Fiji on or about 5 March 1943
* he departed Fiji on or about 18 December 1943 and arrived in Bougainville, Papua New Guinea, on or about 25 December 1943
* he departed Papua New Guinea in July 1944 and arrived in the United States on or about 3 August 1944

4.  He was honorably discharged on 3 January 1945 to accept a commission.  His Honorable Discharge Certificate shows the following entries:

	a.  He participated in the Battle of Solomon Islands, Guadalcanal.

	b.  He was awarded the Asiatic-Pacific Campaign Medal with Battle Star (bronze service star), Presidential Unit Citation with Star, Army Good Conduct Medal, Combat Infantryman Badge, American Defense Service Medal, and Marksman Marksmanship Qualification Badge with Rifle Bar (M-1).

	c.  The wounds received in action block are shown as "None."

5.  His service records do not contain official orders awarding him the Purple Heart.  Additionally, his contemporaneous WD AGO Form 66 (Officer's, Warrant Officer's, and Flight Officer's Qualification Record) does not show award of the Purple Heart or list a combat wound or injury.

6.  The "Administrative Remarks" block of his WD AGO Form 24 (Service Record) lists various awards, but does not list the Purple Heart.  Additionally, this form does not show a combat wound or injury.

7.  His WD AGO Form 63 (Report of Physical Examination), dated 1 December 1944, shows he underwent a physical examination for appointment as a commissioned officer.  There is no indication of a combat wound or injury on this form.

8.  On 6 September 1945 in a self-authored and signed statement, he certified that he served with Company G, 164th Infantry, in the East Indies between 18 April 1942 and 9 October 1942 and requested an entry be made in his records to award him a battle star.  He did not address any injuries/combat wounds or the Purple Heart.

9.  He was appointed as a second lieutenant in the Army of the United States and executed an oath of office on 4 January 1945.  He entered active duty on the same date and successfully completed Officer Candidate School.  He was honorably released from active duty on 19 October 1945.

10.  His WD AGO Form 53-98 (Military Record and Report of Separation - Certificate of Service) shows the following entries:

	a.  Item 28 (Battles and Campaigns) shows he participated in the Southern Solomons, Northern Solomons, and East Indies campaigns.

	b.  Item 29 (Decorations and Citations) shows the American Defense Service Medal, Asiatic-Pacific Theater Ribbon, Presidential Unit Citation with Star, and Combat Infantryman Badge.

	c.  Item 30 (Wounds Received in Action) is blank.

11.  He was appointed in the North Dakota Army National Guard as an infantry second lieutenant and executed an oath of office on 22 September 1945.  He served in various positions in the Army National Guard and attained the rank of lieutenant colonel.  He was ultimately transferred to the Retired Reserve on 28 February 1977 and placed on the Retired List in the rank of lieutenant colonel in February 1981.

12.  His service records contain multiple Standard Forms 88 (Reports of Medical Examination) and Standard Forms 89 (Reports of Medical History) that listed specific illnesses, but none listed a combat wound or injury or treatment for such wound or injury.

13.  His service records contain multiple Statements in Lieu of Medical Examination wherein he repeatedly indicated he was in good health or he considered himself medically able to perform his duties.  Nowhere did he mention a combat injury or wound or treatment for such injury or wound.

14.  He submitted the following documents:

	a.  In a self-authored statement, dated April 2006, subject:  Combat-Related Sickness/Injuries, he describes his combat experience.  He states that his platoon was engaged in a firefight in November 1942 in Guadalcanal, Solomon Islands, where he was assigned as a forward observer for the 60-milimeter mortar section.  He was hit in the head, but his helmet saved him from injuries.  He received pain killers for his right side and treatment for malaria.  Since the platoon leader was killed, he was assigned as the platoon leader and received the Legion of Merit for this honor.  He also received additional treatment for his back injury and malaria, but he did not leave the platoon.  When the platoon was relieved and sent to Fiji, he was assigned as the first sergeant and he was hospitalized for several days and received treatment for his back injury and for malaria.

	b.  A copy of his Army CRSC decision letter, dated 1 November 2007, shows he was awarded CRSC for his limited motion in the cervical spine, migraine headaches, and paralysis in the lower ridicular nerve group.

	c.  A statement from Dr. S____ W. L____, dated 22 April 2010, indicates he examined the applicant's eye health and visual system and opines that the applicant's eye condition appears to be long-standing and related to severe trauma to the left side of his brain.

	d.  In a self-authored statement, dated 12 July 2010, he states his eye condition is related to the injury he suffered when his helmet was hit.

15.  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.

16.  Army Regulation 600-8-22 (Military Awards) provides 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 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.

	a.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:  injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and/or concussion injuries caused as a result of enemy-generated explosions.

	b.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows:  frostbite or trench foot injuries; heat stroke; food poisoning not caused by enemy agents; chemical, biological, or nuclear agents not released by the enemy; battle fatigue; disease not directly caused by enemy agents; accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; self-inflicted wounds, except when in the heat of battle and not involving gross negligence; post-traumatic stress disorders; and/or jump injuries not caused by enemy action.

17.  The applicant's reconstructed records show he is entitled to awards that are not listed on his WD AGO Form 53-55.

18.  Army Regulation 600-8-22 provides for the following awards: 

	a  The Bronze Star Medal is awarded for heroism and for meritorious achievement or service in military operations against an armed enemy.  The Bronze Star Medal is authorized for each individual who was cited in orders or awarded a certificate for exemplary conduct in ground combat between 7 December 1941 and 2 September 1945 or whose achievement or service during that period was confirmed by documents executed prior to 1 July 1947.  An award of the Combat Infantryman Badge or the Combat Medical Badge is considered to be a citation in orders for the Bronze Star Medal.  Therefore, the Bronze Star Medal is to be awarded to individuals who were authorized either badge for service during World War II.

	b.  The World War II Victory Medal was established by act of Congress on 6 July 1945.  It was awarded for service between 7 December 1941 and 31 December 1946, both dates inclusive.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the Purple Heart.

2.  The evidence shows the applicant's records contain administrative errors which do not require action by the Board.

	a.  He was awarded the Combat Infantryman Badge.  Therefore, he is entitled to award of the Bronze Star Medal based on award of this Combat Infantryman Badge and correction of his records to show this award.

	b.  He served a qualifying period for award of the World War II Victory Medal. 
Therefore, he is entitled to award of the World War II Victory Medal and correction of his records to show this award.

3.  With respect to the Purple Heart, the Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather, he or she is entitled to it upon meeting specific criteria.  When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not the sole justification for the award.

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

5.  The applicant's available medical records do not show he suffered a combat wound or injury or that he was treated for a combat wound or injury.  Additionally, there is no reference in his service records to a combat injury or wound or treatment for such injury or wound.  His record is void of orders that show he was awarded the Purple Heart and there is no evidence in his service personnel records that shows he was wounded or injured as a result of hostile action or treated for such wounds.

6.  Regrettably, notwithstanding the applicant's sincerity, in the absence of additional documentation that conclusively shows that the applicant 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 an insufficient basis for awarding the Purple Heart to the applicant.

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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board determined that administrative errors in the records of the individual concerned should be corrected.  Therefore, the Board requests the Army Review Boards Agency Case Management Support Division, Arlington, VA, administratively correct the records of the individual concerned as follows:

* awarding the applicant the Bronze Star Medal based on award of the Combat Infantryman Badge
* adding the Bronze Star Medal and the World War II Victory Medal to his WD AGO Form 53-98

3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by him in service to our Nation.  The applicant and all Americans should be justifiably proud of his 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)                                         AR20100026060



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ABCMR Record of Proceedings (cont)                                         AR20100026060



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