IN THE CASE OF:
BOARD DATE: 28 April 2011
DOCKET NUMBER: AR20100026941
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 he was wounded in Italy.
3. He provides:
* a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)
* two memoranda from the VA
* three pages of his medical records
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 ABCMR for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973. It is believed that his records were lost or destroyed in that fire.
3. The available evidence shows he enlisted in the Army of the United States on 21 October 1942.
4. On 19 October 1945, he was honorably discharged after completing a total of 2 years, 11 months, and 29 days of creditable active military service.
5. Item 33 (Decorations and Citations) of his WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) shows the Army Good Conduct Medal, European-African-Middle Eastern Theater Ribbon with three bronze service stars, and four overseas service bars.
6. Item 34 (Wounds Received in Action) of his WD AGO Form 53-55 does not show he sustained any wounds.
7. Item 36 (Service Outside Continental United States and Return) of his WD AGO Form 53-55 shows he served in the European theater of operations from 11 May 1943 through 7 August 1945.
8. He submitted a memorandum from the VA, dated 19 February 1946, which states his official records did not show he incurred an injury or illness in the line of duty and it was not established that his yellow jaundice condition was service connected.
9. On 15 April 1946, the VA informed him that his claim for disability was reconsidered and denied because the effects of yellow jaundice were not found at the time of his discharge.
10. He submitted a VA Statement in Support of Claim in which he states he was operating a steam locomotive in Italy when they were attacked by the Bastion German Air Force. Some of the strafing bullets hit his locomotive causing much of the locomotive's jacket to come loose striking his right calf. His wound "was not [serious] as the piece of metal was extracted without damage to the bone, only making a cut in muscle areas."
11. He submitted a document from his civilian medical records, dated 7 May 2010, which states:
a. he needed the doctor to see if there was any scarring on his right lower leg from a piece of metal that went into it 65 years ago during the war;
b. he was asked to write an account of the events that transpired and to have his doctor look at his leg and describe the scar since his official records were destroyed;
c. he remembers being hit by enemy fire while in Naples, Italy, when he came under attack;
d. he remembers being hit by shrapnel in his lower right leg;
e. His commander noted considerable bleeding from his leg when he disembarked the train; and
f. the shrapnel required removal by military physicians.
12. Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained 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 a medical officer, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. The fact the applicant has a scar on his leg is not disputed.
2. Regrettably, there is no evidence available and the applicant did not provide any evidence to show that he was wounded as a result of hostile action. Therefore, there is insufficient evidence on which to base correcting his WD AGO Form 53-55 to show award of 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 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) AR20100026941
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
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