IN THE CASE OF:	  

		BOARD DATE:	  30 June 2011

		DOCKET NUMBER:  AR20100029481 


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, the widow of a deceased former service member (FSM), requests award of the Purple Heart and correction of the FSM’s WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) to show this award.

2.  The applicant states the FSM was injured in combat and he was never awarded the Purple Heart.

3.  She provides:

* the FSM's Certificate of Death
* the FSM's WD AGO Form 53-55
* a Veterans Administration (VA) Form P-80c (Award of Disability Compensation, Service-Connected)

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 FSM’s military records are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the FSM’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The FSM was inducted into the Army of the United States and he entered active service on 10 January 1945.

4.  He served in the Asiatic-Pacific Theater of Operations from 4 August 1945 to 16 September 1946.

5.  Item 34 (Wounds Received in Action) of his WD AGO Form 53-55 shows the entry "None."  There is no evidence that indicates he sustained wounds as a result of hostile action.

6.  The FSM was honorably discharged on 28 November 1946.  His WD AGO Form 53-55 does not show he was awarded the Purple Heart.

7.  In the VA Form P-80c provided by the applicant, dated 24 November 1948, the VA awarded him service-connected disability compensation for residuals of a bayonet wound, left thigh, muscle group, moderately severe that was held to have been incurred or aggravated during his wartime service.  The condition of fracture, incomplete, compound, left femur, healed, was incurred in service but was not disabling to meet the minimum requirements for a 10 percent (%) rating and was not compensable.

8.  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.


9.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the FSM was injured in combat and he was never awarded the Purple Heart is acknowledged.  However, there are no medical documents which indicate the FSM was wounded as a result of hostile action during World War II.

2.  In addition, the FSM’s WD AGO Form 53-55 does not reflect he received any wounds in action.

3.  The VA Form P-80c that indicates the FSM was granted service-connection (20%) for residuals of bayonet wound, left thigh, muscle group, moderately severe is acknowledged.  However, the VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  The VA rating decision is insufficient to show the FSM’s injury was incurred as a result of hostile action.

4.  In the absence of any other corroborating evidence of record which shows the FSM was wounded or injured as a result of hostile action, there is an insufficient basis upon which to award of the FSM the Purple Heart in this case.  

5.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of the FSM’s service in arms.

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)                                         AR20100029481



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ABCMR Record of Proceedings (cont)                                         AR20100029481



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