BOARD DATE: 2 June 2011
DOCKET NUMBER: AR20100028412
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 while in Germany, the tank in front of him was hit and caused acoustic trauma to his ears. He adds that he received a 100 percent hearing loss.
3. He provides the following:
* WD AGO Form 53-55 (Enlisted Record and Report of Separation)
* Honorable Discharge Certificate
* Department of Veterans Affairs (VA) decision rating, dated 5 October 2007
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 applicants 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 the applicants records were lost or destroyed in that fire. However, there were sufficient documents remaining for the ABCMR to conduct a fair and impartial review of this case.
3. Records available to the Board show that the applicant was inducted into the Army of the United States on 23 July 1942 and entered active duty on 5 August 1942. He served in the European theater from 18 October 1943 to
17 September 1945 and was honorably discharged on 13 October 1945.
4. Item 33 (Decorations and Citations) of his WD AGO Form 53-55 does not show the award of the Purple Heart. Item 34 (Wounds Received in Action) lists "None." However, the applicant wrote in this item "Hearing impaired can't hear, use hearing aids."
5. There is no documentation in the available records which shows he sustained wounds or was treated for wounds incurred as a result of hostile action.
6. The VA decision rating shows that effective 22 June 2007, his condition of bilateral hearing loss was increased from 20 to 100 percent.
7. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained 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 a medical officer, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. The fact that the applicant provided documentation from his VA decision rating that shows his rating was increased from 20 to 100 percent for hearing loss is not sufficient evidence to conclude that he is entitled to the award of the Purple Heart. The VA decision does not provide evidence to show that his wounding was the result of hostile action.
2. There are no medical records available which show he was wounded or treated for wounds as a result of hostile action during his service in World War II. Regrettably, in the absence of medical records supporting his contention, there is an insufficient basis for award of 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 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.
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