IN THE CASE OF:
BOARD DATE: 24 May 2011
DOCKET NUMBER: AR20100028076
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 two awards of the Purple Heart.
2. The applicant states, in effect, he received shrapnel in his left hand. He "pulled out the shrapnel" and he did not report his injuries because he wanted to stay with his unit. He has a back injury that has been determined to be service connected and he receives a pension from the Department of Veterans Affairs (VA). He believes he is entitled to two awards of the Purple Heart.
3. The applicant provides copies of his WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge); a VA Rating Decision, dated
9 December 2009, announcing a 40 percent rating for spondylosis of the lumbar spine; a post-surgical photograph of his back; a 2009 letter from a neurologist; a 2009 letter from the Military Order of the Purple Heart; a 22 December 2009 VA letter outlining cost of living adjustments; 2009 letter from a medical doctor specializing in back pain management; and a 5 November 2010 letter from the French Consulate General in Chicago.
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 applicants 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 applicants 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 in 1973. It is believed that his records were lost or destroyed in that fire. However, sufficient information is available to render a full and impartial review.
3. The applicant's WD AGO Form 53-55 shows he was inducted into the Army of the United States and he served on active duty from 27 January 1943 to
27 January 1946. He was honorably discharged as a private first class. He was awarded the World War II Victory Medal, American Campaign Medal, European-African-Middle Eastern Campaign Medal with one silver service star, four Overseas Service Bars, one Service Stripe, Good Conduct Medal, Expert Marksmanship Qualification Badge with Rifle Bar, and the Honorable Service Lapel Button.
4. Item 34 (Wounds Received in Action) of the WD AGO Form 53-55 states "NONE."
5. A DA Form 1577 (Authorization for Issuance of Awards), dated 21 August 2000, shows that all of his awards, including the Army of Occupation Medal with Germany Clasp, have been issued. There is no mention of the Purple Heart in any of the correspondence associated with this occurrence.
6. Army Regulation 600-8-22 (Military Awards) states 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 that 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.
DISCUSSION AND CONCLUSIONS:
1. Award of the Purple Heart is contingent upon there being a record of medical treatment for a wound sustained while in action against an enemy or as the result of enemy action.
2. The applicant's contentions are not in question. However, the applicant stated that he treated himself and he did not report his injuries; therefore, there is no corroborating evidence to confirm that he was wounded as a result of enemy action and he was treated for the wounds.
3. In the absence of evidence to show he was wounded as result of enemy action, he was treated by medical personnel, and the treatment was made a matter of official record, the Purple Heart cannot be awarded.
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) AR20100028076
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ABCMR Record of Proceedings (cont) AR20100028076
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