BOARD DATE:	  31 May 2011

		DOCKET NUMBER:  AR20100026589 


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 reconsideration of the Army Board for Correction of Military Records (ABCMR) decision denying him the award of the Purple Heart. He requests:

	a.  award of the Purple Heart; and 

	b.  adding to Item 34 (Wounds Received in Action) of his WD AGO
Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) for the period ending 4 November 1945 the entry "Shrapnel wounds at base of right thumb and below ankle of right foot."

2.  The applicant states he suffered wounds as a result of German artillery fire while he was providing medical care to other Soldiers who were wounded more severely than he was.  After 65 years, he finally found someone from his unit who saw his right hand wrapped in a bandage.

3.  The applicant provides:

* His WD AGO 53-55 
* His DD Form 214 (Report of Separation from the Armed Forces of the United States)
* A statement from a fellow Soldier


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 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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR2002078738 on 4 February 2003.

3.  The statement from a fellow Soldier submitted by the applicant is new evidence and will be reconsidered by the ABCMR.

4.  The applicant’s service personnel records were lost or destroyed in a fire at the National Personnel Records Center in 1973.  The records available to the ABCMR were provided in part by the applicant and also obtained from alternate sources and are sufficient for the Board to conduct a fair and impartial review of this case.  The primary record available to this Board is the applicant’s WD AGO Form 53-55.

5.  He was inducted into the Army of the United States on 1 April 1944 and he entered active service on 15 April 1944.  He completed basic combat and advanced individual training and was awarded military occupational specialty 861 (Surgical Technician).

6.  His record of service outside the continental U.S. shows he served in:

* France from 6 February to 22 March 1945
* Germany from 23 March to 3 May 1945
* 
Austria from 3 May to 12 June 1945
* Germany 13 June to 28 November 1945

7.  On 4 November 1945, he was discharged from the Army of the United States for the convenience of the Government to enlist in the Regular Army.  Item 34 of his WD AGO 53-55 contains the entry "None."

8.  His service medical records are not available for review.

9.  He submitted an undated statement from a Soldier who was assigned to his unit.  In this statement the Soldier states he saw the applicant's hand wrapped up and was told by the applicant that he got hit on 30 April [year not specified] while crossing the Izar river.

10.  A sample WD AGO Form 53-55 in War Department Technical
Manual 12-235 (Enlisted Personnel, Discharge and Release from Active Duty) shows a sample entry for item 34 of the WD AGO Form 53-55.  This entry shows the date, theater, and type of wound received.

11.  Army Regulation 600-45 (Decorations), then in effect, which governed the award of Army decorations until 23 August 1951, stated the Purple Heart was awarded citizens of the United States serving with the Army, who are wounded in action against an enemy of the United States, or as a direct result of an act of such enemy, provided such wound necessitated treatment by a medical officer.  This regulation stated that for the purpose of considering an award of the Purple Heart, a “wound” is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.  

DISCUSSION AND CONCLUSIONS:

1.  According to the undated Soldier's statement, he was not present when the applicant received the injury to his hand.  When he saw his hand all wrapped up the applicant told him he got hit while crossing the Izar river.  Therefore, the statement does not provide any substantive evidence as to how or when the applicant received his injury.

2.  There were no service medical records available for review.

3.  There is no substantive evidence showing the date, location, and type of injury or wound he may have received in action.  Therefore, there is an insufficient basis to make any entries in item 34 of his WD AGO 53-55.

4.  In view of the above, there is insufficient substantive evidence to award the Purple Heart in this case.

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 to amend the decision of the ABCMR set forth in Docket Number AR2002078738, dated 4 February 2003.



      __________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)                                         AR20100026589



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ABCMR Record of Proceedings (cont)                                         AR20100026589



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