IN THE CASE OF:	  

		BOARD DATE:	  26 July 2011

		DOCKET NUMBER:  AR20100030174 


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, in effect, that the records of her deceased husband, a former service member (FSM), be corrected to show award of the Purple Heart and that he served in the U.S. Army in World War II from 6 December 1941 to 
20 August 1945.

2.  The applicant states the FSM had a copy of his WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) but his service for the period 1941 to 1945 appears to be missing from his official records.  In addition, the FSM was injured in combat on 22 November 1943 and was hospitalized in Italy for 40 days but was never awarded the Purple Heart.

3.  The applicant provides the following:

* WD AGO Form 53-55, for the period 6 December 1941 to 20 August 1945
* Army of the United States, Honorable Discharge Certificate, dated 
20 August 1945
* Certificate of Completion of Basic Training, Field Artillery Replacement Training Center, dated 21 February 1942
* FSM's typed personal statement
* Medical record, Internal Medicine notes, dated 22 July 2002 and 
14 October 2010
* Witness statement, dated 10 July 2009
* State of Texas, Certificate of Death, date of death 7 August 2006
* Headquarters 747th Field Artillery Battalion travelogue, dated 6 July 1945
* FSM's handwritten notes documenting service connected illnesses and medical treatment
* Applicant letters which reference correction of her pay and recommendations to investigate divorced wives who are receiving retired pay and living with a common-law ex-husband

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 service 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, the applicant provided a copy of the FSM's WD AGO Form 53-55 which was sufficient evidence for the Board to conduct a fair and impartial review of this case.

3.  A WD Form 371 (Final Payment Roll) and 371a [Account Ledger] shows the net pay the FSM received when he was discharged on 20 August 1945.  This document fails to show that the FSM was credited with additional pay for any special skill badges or awards.  This document also shows that the FSM placed his signature on the document certifying the net pay he received.

4.  The FSM's WD AGO Form 53-55 shows he was inducted into the Army of the United States on 6 December 1941 and was honorably discharged on 20 August 1945.  At the time he had completed 3 years, 8 months, and 14 days of service for pay purposes.  It shows in:

	a.  item 32 (Battles and Campaigns) he was credited with participation in the Algeria-French Morocco, Tunisia, Sicily, Naples-Foggia, Rome-Arno, Southern France, Rhineland, and Central Europe campaigns;

	b.  item 33 (Decorations and Citations) and item 55 (Remarks) he was awarded the Army Good Conduct Medal, Army Lapel Button, American Defense Service Medal, European-African-Middle Eastern Campaign Medal with 8 bronze service stars and 1 bronze arrowhead; and

	c.  item 34 (Wounds Received In Action) shows the entry "None."

5.  There is no evidence in the available military service records that shows the FSM was awarded the Purple Heart.

6.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the Purple Heart.  It states the Purple Heart is awarded to any member who has been wounded or killed in action.  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.  In order to support awarding a member the Purple Heart, it is necessary to establish that the wound for which the award is being made required treatment by medical personnel and the medical treatment for the wound or injury received in action must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends FSM's records should be corrected to show award of the Purple Heart because he was injured during World War II on 22 November 1943 and his record should show his service in World War II from 1941 to 1945.

2.  There is no evidence in the FSM's available military service records which shows he was wounded while in action or as a result of enemy action.  In addition, the FSM's WD AGO Form 53-55 does not show he was wounded in action.

3.  The Army regulatory guidance governing the criteria for award of the Purple Heart is clear in that the wound for which the award is made must have been sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy, the wound must have required treatment by medical personnel, and record of the medical treatment for the wound or injury sustained in action must have been made a matter of official record.



4.  The FSM's WD AGO Form 53-55 clearly shows he served in the Army of the United States from 6 December 1941 to 20 August 1945 and that he participated in several World War II campaigns.  Unfortunately, it appears all his other records were destroyed in 1973.  Therefore, the available records do not show an apparent error which would require correction. 

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)                                         AR20100030174





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ABCMR Record of Proceedings (cont)                                         AR20100030174



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