IN THE CASE OF:	  

		BOARD DATE:	  25 August 2011

		DOCKET NUMBER:  AR20110003488 


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 correction of the records and final DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 29 February 1968, of her deceased husband, a former service member (FSM), to show award of the Purple Heart (PH).

2.  The applicant states the FSM received a PH, but it is not reflected on his DD Form 214.  She claims the medal came up missing following the FSM's death and she wants to replace it, but she can't without proof it was awarded.

3.  The applicant provides the following documents in support of the application:

* FSM's death certificate
* military personnel records review certification letter, dated 1 September 1948
* WD AGO Form 53-98 (Military Record and Report of Separation – Certification of Service), dated 7 December 1949
* Headquarters, 40th Infantry Division, Bronze Star Medal with 2nd Oak Leaf Cluster Citation for the period 24 September 1952 to 17 January 1953, undated
* Information Officer Program assignment memorandum, dated 2 April 1964
* Army Commendation Medal (ARCOM) orders, dated 15 June 1965
* DA Form 66 (Officer Qualification Record) audited 6 June 1967
* temporary disability retirement list (TDRL) orders, dated 26 February 1968


* DD Form 214 for the period ending 29 February 1968
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 19 June 1970
* permanent disability retirement orders, dated 18 September 1970
* request for the PH, dated 30 July 2003

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.  On 12 April 1942 while serving as a member of the Officer Reserve Corps, the FSM entered active duty in the rank of captain.

3.  The FSM's military personnel records jacket (MPRJ) contains a WD AGO 
Form 38 (Report of Physical Examination), dated 30 March 1946.  This report gives no indication the applicant was wounded in action during his combat service during World War II.

4.  The FSM was selected for appointment in the Regular Army (RA).  On 7 December 1949, he was separated from the Officer Reserve Corps in order to continue active duty in the RA.  The WD AGO Form 53-98 he was issued at that time does not include the PH in the list of earned awards contained in item 29 (Decorations and Citations), and item 30 (Wounds Received in Action) contains the entry "None."

5.  The FSM's DA Form 66, item 17 (Foreign Service), shows he completed tours in the European theater of operations during World War II between 1 January 1944 and 27 October 1945 and from 16 February 1946 through 21 December 1947 and in Korea from 29 June 1952 through 16 September 1953.



6.  Item 21 (Awards and Decorations) of the FSM's DA Form 66 shows he earned the following awards:

* European-African-Middle Eastern Campaign Medal
* American Campaign Medal
* World War II Victory Medal
* Combat Infantryman Badge (2nd Award)
* BSM (3rd Award)
* four overseas service bars
* Army of Occupation Medal with Germany Clasp
* Korean Service Medal
* United Nations Service Medal
* Commendation Ribbon with Metal Pendant [now known as the ARCOM]
* National Defense Service Medal (2nd Award)
* Republic of Korea Presidential Unit Citation
* ARCOM (2nd Award)

7.  Item 21 of the FSM's DA Form 66 does not include the PH in the list of earned awards and the FSM last audited this record on 6 June 1967.  His MPRJ is void of any orders or other documents indicating he was ever recommended for or awarded the PH by proper authority during his active duty tenure.  The FSM's MPRJ also contains no medical treatment records showing he was ever treated for a combat-related wound.

8.  The FSM's MPRJ contains a Standard Form 88 (Report of Medical Examination), dated 6 April 1951.  This document gives no indication the applicant was ever wounded in action.  His MPRJ also contains Standard Forms 88 completed in 1951, 1953, and 1967 – all of which are void of any information indicating he was ever wounded as a result of enemy action or treated for a combat-related wound by military medical personnel during his active duty tenure.

9.  On 29 February 1968, the FSM was honorably retired in the grade of lieutenant colonel/O-5 by reason of physical disability (heart disease) and placed on the TDRL.  The DD Form 214 he was issued at that time shows he completed a total of 25 years, 10 months, and 19 days of active military service.

10.  The applicant provides a request for the PH from the FSM, dated 30 July 2003, in which the FSM outlined the episodes he believed qualified him to be 


awarded the PH.  Both episodes took place in 1944 during World War II.  The applicant does not provide the response to this request from Department of the Army.

11.  Army Regulation 600-8-22 (Military Awards) contains the Army's award policy.  Paragraph 2-8 contains guidance for awarding the PH.  It states in order to support award of the PH there must be evidence the wound for which the award is being made was received as a result of enemy action, the wound required treatment by military medical personnel, and a record of this treatment was made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that the PH be added to the FSM's record and DD Form 214 has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The FSM's record is void of any documents indicating he was ever wounded in action or treated for a combat-related wound by military medical personnel while serving on active duty.  The FSM's DA Form 66 does not include the PH in the list of earned awards entered in item 21 and the FSM last audited this record on 6 June 1967 verifying the information it contained was correct at the time.

3.  The WD AGO Form 53-98 issued to the FSM covering his active duty service during World War II does not include the PH in the list of earned awards entered in item 29 and item 30 contains the entry "None" indicating the FSM was not wounded in action during this period.

4.  The FSM's MPRJ is void of any documents or orders showing he was ever recommended for or awarded the PH by proper authority while serving on active duty.  It is also void of any medical treatment records indicating he was ever treated for a combat-related wound.  The MPRJ contains reports of medical examinations, dated in 1946, 1951, 1954, and 1967, which all are void of any notation indicating the applicant was ever wounded in action.

5.  Absent any evidence confirming the FSM was wounded in action or treated for a combat-related wound at anytime during his active duty tenure, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____ ____  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The applicant and all others concerned should know this action related to award of the PH 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.



      ____________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)                                         AR20110003488



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ABCMR Record of Proceedings (cont)                                         AR20110003488



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