BOARD DATE:	  5 May 2011

		DOCKET NUMBER:  AR20110005691 


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 record of his deceased great-grandfather, a former service member (FSM), to show he was awarded the Purple Heart (PH).  

2.  He states the FSM received gunshot wounds to his right shoulder and head during his Civil War service.

3.  He provides:

* the FSM's death certificate and obituary
* his Department of Defense/Uniformed Service Identification and Privilege Card
* his birth certificate
* a family tree
* Soldier data and a list of battles involving the 30th Ohio Infantry Regiment from The American Civil War Research Database
* pages from websites regarding the history of the PH
* a summary of the FSM's service from the State of Ohio Adjutant General's Office
* records pertaining to the FSM's application for a pension
* enlistment and other military records pertaining to the FSM



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 record is not available to the Board for review.  This case is being considered based on the records provided by the applicant.

3.  A summary of the FSM's service prepared by the State of Ohio Adjutant General's Office shows:

* on 17 August 1861, he enrolled in Company G, 30th Regiment, Ohio Volunteer Infantry 
* on 28 August 1861, he mustered into active service 
* on 13 August 1965 he mustered out

4.  The available records do not show the FSM received medical treatment for wounds he incurred during his service.

5.  On 7 June 1880, the FSM signed a Declaration for an Original Invalid Pension.  The form shows the FSM claimed that:

* on or about 14 September 1962, at South Mountain, MD, he received a gunshot wound to the right shoulder blade 
* in June 1864 he received a severe wound to the top of his head at Vicksburg, MS

6.  The available records show he was given a disability rating on or about 3 November 1897.  

7.  A Surgeon's Certificate, completed on 22 October 1902 in response to the FSM's application for an increase in his pension, shows he claimed he was 


wounded in 1863.  A physical examination showed he had a scar from a gunshot wound on the left side of his head.  

8.  The FSM's death certificate shows he died on 19 December 1915.

9.  Various websites show the 30th Regiment, Ohio Volunteer Infantry, saw combat at South Mountain, MD, in September 1862 and at Vicksburg, MS, in 1863.  

10.  The pages from websites provided by the applicant indicate the PH could be awarded to Soldiers wounded during the Civil War and that approximately 10 Civil War veterans applied for and received the PH.  The sources for this information are not provided.

11.  The PH was established by General George Washington at Newburgh, New York, on 7 August 1782, during the Revolutionary War.  It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action.

12.  Army Regulation 600-8-22 (Military Awards) states the PH 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, and the medical treatment must have been made a matter of official record.  This regulation also provides that there are no time limitations for requests for award of the Purple Heart.

13.  War Department Circular Number 6, dated 22 February 1932, published the initial criteria for the reestablished PH and ended authorization for award of the wound chevron.  The circular stated awards of the PH for acts or service performed prior to 22 February 1932 would be confined to the following persons:

	a.  Members of the Army of the United States who were awarded the Meritorious Service Citation Certificate for expeditionary service in World War I.  

	b.  Individuals authorized to wear the wound chevron and who made application for the PH.



	c.  Individuals not authorized to wear the wound chevron prior to 22 February 1932 who would otherwise have been authorized to wear that decoration under the provisions of Army Regulation 600-95 (Authority for Wearing, and Supply of, Wound and War Service Chevrons).  

14.  War Department Circular Number 6 also stated the PH would not be awarded posthumously.  

15.  Army Regulation 600-95 stated a wound chevron was authorized for wear by individuals who received a wound in action with an enemy of the United States that necessitated treatment by a medical officer.  

16.  Executive Order 9277, dated 3 December 1942, authorized posthumous awards for individuals wounded or killed in action beginning 6 December 1941.  Executive Order 10409, dated 12 November 1952, extended the authorization for posthumous awards to individuals wounded or killed in action after 5 April 1917.  Both Executive Orders direct the Services' regulations to "be of uniform application" with respect to the award of the Purple Heart.

18.  Executive Order 11016, dated 25 April 1962, as amended, currently provides the authority to award the PH.  It also authorized posthumous awards to individuals wounded or killed in action after 5 April 1917.  

DISCUSSION AND CONCLUSIONS:

1.  The PH was not awarded during the Civil War.  When the award was reestablished in 1932, upon application, living Civil War veterans who met the criteria could receive the award.  By authorizing posthumous awards for individuals wounded or killed in action after 5 April 1917, Executive Orders later confirmed the intent to maintain the PH as an award for individuals who served during World War I and later conflicts.     

2.  Having died in 1915, the FSM could not have applied for award of the PH when it was reestablished, and there is no legal or regulatory authority to award the PH posthumously for wounds incurred prior to 5 April 1917.  Therefore, there is no basis for granting the requested relief.

3.  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)                                         AR20110005691





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ABCMR Record of Proceedings (cont)                                         AR20110005691



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