IN THE CASE OF:	  

		BOARD DATE:	  20 October 2011

		DOCKET NUMBER:  AR20110009349 


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 his WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) for the period ending 26 January 1946 to show award of the Purple Heart.

2.  The applicant states that he was wounded in combat by shell fragments, but he never received the Purple Heart.

3.  The applicant provides:

* his WD AGO Form 53-55
* a Medical Department Form 52a (Index of Patients (Card))
* an AGO Form 645 (Casualty Report)
* a War Department Casualty Message Telegram
* a memorandum from Headquarters Company, U.S. Army Forces Western Pacific (AFWESPAC), dated 25 June 1945
* a memorandum from Headquarters, Special Troop, AFWESPAC, dated  27 November 1945

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 applicant’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 applicant’s records were lost or destroyed in that fire.  However, this case is being considered using reconstructed records, which primarily consist of the documents provided by the applicant and:

* a WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty or Retirement), dated 25 January 1946
* a War Department, The Adjutant General’s Office Letter Order, dated 
11 February 1947

3.  The applicant's WD AGO Form 53-55 shows he was inducted into the Army of the United States on 17 May 1943 and entered active duty on 24 May 1943.  On 10 December 1943, he departed the United States for duty in the Asiatic Pacific Theater of Operations (APTO).  He arrived in the APTO on 23 December 
1943 and was assigned to Company C, 172nd Infantry, 43rd Infantry.  

4.  The applicant provided a Medical Department Form 52a that indicates he received wounds to his abdomen and right thigh from shell fragments on 9 November 1944, at Aitape Beach, New Guinea.  The document further shows his wounds were considered an accidental injury (AI) during a battalion training problem.

5.  The applicant provided an AGO Form 645 that shows his mother was sent a Casualty Message Telegram on 16 November 1944, notifying her that her son was seriously ill since 9 November 1944 and she would advised as reports of his condition are received.

6.  The applicant provided a memorandum from the Executive Officer of Headquarters Company, AFWESPAC, dated 25 June 1945, addressed to the Commander, Company C, 172nd Infantry, 43rd Division requesting authorization of the Purple Heart for the applicant be forwarded to his office for proper entry in the applicant’s service record.

7.  The applicant provided a memorandum from the Adjutant of Headquarters, Special Troop, AFWESPAC, dated 27 November 1945 addressed to the 
Commander, Company C, 172nd Infantry, 43rd Division requesting information whether the applicant was ever eligible for the Combat Infantryman Badge and the Purple Heart.  The Adjutant indicated that the applicant claimed he was wounded while assigned to Company C, 172nd Infantry, 43rd Division and was sent to the 30th Evacuation Hospital and later to the 364th Station Hospital for treatment of his wound.  The Adjutant further stated if the applicant was eligible for the Combat Infantryman Badge and Purple Heart that “it is desired that this headquarters be furnished with Orders authorizing subject awards, so that entry could be made in his Service Record.”  There is no evidence that the request was acted upon.

8.  The applicant's departure date from the APTO is unknown.  He arrived in the United States on 19 January 1946.

9.  The WD AGO Form 38 shows in item 11 (List all significant diseases, wounds, and injuries.  State circumstances under which wounds or injuries were incurred and date of onset.) the entry "Shrapnel wound, training accident, abdomen, right leg & arm Nov. 43 - 30th Evacuation Hospital - New Guinea."

10.  On 26 January 1946, the applicant was honorably discharged.  

11.  The applicant's WD AGO Form 53-55 shows:

* in item 33 (Decorations and Awards) the:

* World War II Victory Medal
* Army Good Conduct Medal
* Asiatic-Pacific Theater Campaign Medal with one bronze service star

* in item 34 (Wounds Received in Action) the entry "None"

12.  There are no general orders available that show the applicant was awarded the Purple Heart.

13.  The applicant’s service record contains a letter from the War Department, The Adjutant General’s Office, dated 11 February 1947 awarding the applicant the Combat Infantryman Badge for satisfactory performance of duty in ground combat against the enemy while assigned to the 172nd Infantry, his effective date for pay was 23 July 1944.


14.  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, and the medical treatment must have been made a matter of official record.  

15.  Included as part of the Department of Defense Appropriations Act for fiscal year 1994 was an amendment to the rules governing award of the Purple Heart.  While the original rules established that the Purple Heart would be awarded to individuals killed or wounded as a result of hostile action, the amendment enabled the Secretaries of each department to award the Purple Heart to members of the armed forces who were killed or wounded in action by weapons fire, while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States.  This ruling granted the service Secretaries the authority to award the Purple Heart to individuals directly engaged in armed conflict who were killed or wounded as a result of "friendly fire."  Thus Army Regulation 600-8-22 was modified to provide for award of the Purple Heart to individuals wounded or killed as a result of “friendly fire” in the “heat of battle” as long as the “friendly” projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.

16.  Army Regulation 600-8-22 provides for award of the Combat Infantryman Badge and states that there are basically three requirements for award of the Combat Infantryman Badge.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.

17.  Army Regulation 600-8-22 further provides that the Bronze Star Medal is authorized for each individual who was cited in orders or awarded a certificate for exemplary conduct in ground combat between 7 December 1941 and 2 September 1945, or whose achievement or service during that period was confirmed by documents executed prior to 1 July 1947.  An award of the Combat Infantryman Badge or the Combat Medical Badge is considered to be a citation in orders.  This means, in effect, that the Bronze Star Medal is to be awarded to individuals who were authorized either badge for service during World War II.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests he be awarded the Purple Heart.


2.  The applicant's sincerity in requesting the Purple Heart is understood and appreciated.  Unfortunately, the evidence of record clearly shows he was wounded by U.S. ordnance during a training exercise, not during the heat of battle. Under those circumstances, he is not eligible for a Purple Heart even for a "friendly fire" incident.  The Purple Heart should not be approved.

3.  After his discharge, the applicant was authorized and awarded the Combat Infantryman Badge.  This badge does not appear on his WD AGO Form 53-55.

4.  Because of his entitlement to the Combat Infantryman Badge, the applicant is also entitled to award of the Bronze Star Medal and both of these decorations should be added to his WD AGO Form 53-55.

5.  Evidence shows that the applicant’s records contain administrative errors which do not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Army Review Boards Agency (ARBA) Case Management Division (CMD) as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned as relates to the Purple Heart.


2.  The Board determined that administrative errors in the records of the individual concerned should be corrected.  Therefore, the Board requests that the ARBA CMD administratively correct the records of the individual concerned to show:

* award the Bronze Star Medal based on award of the Combat Infantryman Badge
* add the Combat Infantryman Badge and Bronze Star Medal to his
WD AGO Form 53-55



      __________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)                                         AR20110009349





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ABCMR Record of Proceedings (cont)                                         AR20110009349



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