IN THE CASE OF:	  

		BOARD DATE:	  22 November 2011

		DOCKET NUMBER:  AR20110011341 


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 son of a former service member (FSM), requests his father be awarded the Purple Heart.

2.  The applicant states his father was not awarded the Purple Heart for wounds received while performing duty in a war zone.  His father was wounded on        12 August 1945 in the line of duty.  His father sustained a gunshot wound to the upper left chest and this happened in the performance of duty prior to 8 May 1945.  He also states that frozen feet were not considered at the time of his father's discharge.  The guidelines for the issuance of the Purple Heart have changed. 

3.  The applicant provides:

* FSM's WD AGO Form 8-24 (Medical Record Report)
* Medical document, dated 8 April 1946, pertaining to the FSM 
* FSM's WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge and Honorable Discharge Certificate)
* His Birth Certificate
* A Power of Attorney, dated 6 March 2008
* Letter from the Army Review Boards Agency, dated 3 June 2011

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 his records were destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record and documentation submitted by the applicant for the Board to conduct a fair and impartial review of this case.

3.  The FSM's available military record shows he was inducted into the Army of the United States on 22 January 1944 and entered active duty on 12 February 1944.  He served in military occupational specialty 199 (Section Hand, Railway). 

4.  The FSM was assigned to Company A, 732nd Railway Operations Battalion and served overseas in:

* England from 3 October 1944 through 14 October 1944
* France from 18 October 1944 through 5 April 1945
* Germany from 6 April through 31 October 1945

5.  The applicant provided a copy of a WD AGO Form 8-24, dated 12 August 1945, which indicated that the FSM was admitted to the hospital after sustaining NBC (non-battle casualty) gunshot wounds to his left buttocks, left upper quadrant, and abdomen incurred in a fight with a Frenchman, when the latter shot into several U.S. Soldiers on 11 August 1945.  

6.  The applicant also provided a copy of a document which shows the FSM sustained a bullet wound in the left leg on 12 August 1945 in France and sustained frost-bitten feet in Germany in 1944.

7.  The FSM's available record contains a hospital admission card (page 174, microfiche 073), created by the Office of the Surgeon General for the year 1945, which shows the FSM was injured as a result of a battle casualty in the European Theater of Operations (ETO) on 12 August 1945.  The circumstances of the injuries are listed as "Injuries intentionally inflicted by another person (except military enemy or guard sentry, military police, etc.)."

8.  There are no orders in the FSM's available records that show he was awarded the Purple Heart for injuries incurred in the line of duty.  There is also no evidence in the available records to show that he was wounded or treated for frostbite or frozen feet as a result of hostile action.

9.  The FSM was honorably discharged in pay grade E-3 on 10 April 1946.

10.  Item 33 (Decorations and Citations) of the FSM's WD AGO Form 53-55 does not list the Purple Heart.  Item 34 (Wounds Received in Action) of his WD AGO Form 53-55 contains no entry to indicate he was wounded while he served in the ETO.  

11.  Army Regulation 600-45 (Decorations), which governed the award of Army decorations until 23 August 1951, stated that for the purpose of considering an award of the Purple Heart, a “wound” was 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.  An “element” pertained to weather and the award of this decoration to personnel who were severely frostbitten while actually engaged in combat was authorized.

12.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for an injury or wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required treatment by military personnel, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is basing his request for award of the Purple Heart to the FSM on the WD AGO Form 8-24, dated 12 August 1945, which clearly shows the FSM sustained NBC gunshot wounds after being shot by a Frenchman who also shot into several U.S. Soldiers.  While it is understandable that such a report would cause one to believe that the injuries incurred by the FSM were combat-related, there is no evidence the incident was combat related.  The war against Germany ended in May 1945.

2.  There is no evidence available and the applicant has not provided sufficient evidence which confirms the FSM was wounded or treated for wounds as a result of hostile action during his period of service.  Item 34 of his WD AGO Form 53-55 contains no entry to indicate the FSM was wounded as a result of enemy action.  Therefore, the FSM does not meet the regulatory requirements for award of the Purple Heart for this incident and regrettably he is not entitled to award of the Purple Heart and to have this award added to his WD AGO Form 53-55.

3.  The applicant also appears to be requesting award of the Purple Heart to the FSM for frostbite.  The available evidence does not show the FSM sustained frostbite to the feet or any other medically-related issues while engaged in combat against the enemy.  The applicant provided insufficient evidence to show the FSM was hospitalized to receive medical treatment for severe frostbite or frozen feet while engaged in combat.  

4.  Regulatory guidance in effect at the time provided for award of the Purple Heart to personnel severely frostbitten while actually engaged in combat.  The evidence does not support the applicant's request for the FSM's entitlement for award of the Purple Heart for frostbite.

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)                                         AR20110011688



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110011341


   
2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1