IN THE CASE OF:	  

		BOARD DATE:	  15 November 2011

		DOCKET NUMBER:  AR20110012408 


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 cousin of a deceased former service member (FSM), requests correction of the FSM's WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) to show award of the Purple Heart.

2.  The applicant states, in effect, the FSM was wounded in battle while serving in the Asiatic Pacific Theater campaign during World War II.  As a result, he was receiving disability benefits from the Department of Veterans Affairs (VA).  She also states the FSM's records were lost due to a fire in St. Louis, MO.

3.  The applicant provides:

* a self-authored statement
* a WD AGO Form 53-55
* three letters from the VA
* a DD Form 215 (Correction to the WD AGO Form 53-55)
* two Letters of Commendation
* a Letter Order
* a WD AGO Form 100 (Separation Qualification Record)
* a Power of Attorney
* a portion of the FSM's Last Will and Testament

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.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  This case is being considered using the WD AGO Form 53-55 provided by the applicant.

3.  The FSM's WD AGO Form 53-55 shows he enlisted in the Regular Army on 14 October 1940.  His final unit of assignment was Service Company, 35th Infantry Regiment.  He was honorably discharged on 25 August 1945 after completing a total of 4 years, 10 months, and 12 days of active military service.  He held the grade of technician fourth class on the date of separation.  

4.  The FSM's WD AGO Form 53-55 also contains the following pertinent information:

	a.  Item 32 (Battles and Campaigns) shows he participated in the Central Pacific, Guadalcanal, Northern Solomons, and Luzon campaigns.

	b.  Item 33 (Decorations and Citations) does not show he was awarded the Purple Heart.

	c.  Item 34 (Wounds Received in Action) shows "None."

	d.  Item 36 (Service Outside Continental U.S. and Return) shows he arrived in the Asiatic Theater of Operations on 24 December 1940 and departed on 23 July 1945.

5.  The applicant provides:

	a.  two Letters of Commendation, dated 10 and 13 February 1945, which show the FSM's unit was commended by the corps and division-level commanders for their actions in the reduction and capture of Lupao and the destruction of enemy forces in that area.

	b.  a WD AGO Form 100, dated 25 August 1945, which shows the FSM served as both a supply clerk and a rifleman during his period of service.

	c.  a Letter Order, dated 9 September 1957, which awarded the FSM the Bronze Star Medal based upon his previous award of the Combat Infantryman Badge.

	d.  a DD Form 215, dated 5 August 2009, which shows the FSM's WD AGO Form 53-55 was corrected by adding six awards and decorations; the Purple Heart was not included in the list.

	e.  three letters from the VA:

		(1)  On 28 December 2007, the VA notified the FSM that Congress and the President had signed into law an act increasing benefits payable for service-connected disabilities or death.  As a result, his new monthly rate of compensation was $230.00.  This letter does not indicate the reason the FSM was entitled to receive disability compensation.

		(2)  On 28 December 2007, the VA notified the applicant that they were sorry to learn of the death of the FSM.  The VA also informed the applicant that beneficiaries are not entitled to benefits for the month in which the death occurred and advised the applicant that the FSM was not entitled to benefits in the amount of $243.00 and requested return of the funds.

		(3)  On 12 March 2010, the VA rendered a letter certifying their records disclosed the FSM had been awarded Compensation benefits in the monthly amount of $243.00 effective 12 January 2008.

6.  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 the wound was the result of hostile action, the wound must have been treated by medical personnel, and the medical treatment must have been made a matter of official records.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the FSM's record should be corrected to show he was awarded the Purple Heart was carefully considered.

2.  His WD AGO Form 53-55 shows he sustained no wounds in action and he authenticated this document at the time of separation.

3.  There is no evidence in the available record and the applicant has not provided sufficient evidence which shows the FSM sustained an injury as a result of hostile action or that he received treatment for injuries sustained as a result of hostile action.

4.  Although the available evidence shows the FSM was receiving monthly monetary compensation from the VA, the applicant did not provide any evidence showing why the FSM was entitled to compensation.

5.  Accordingly, based on the foregoing there is insufficient evidence to award him the Purple Heart.

6.  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 his 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)                                         AR20110012408



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ABCMR Record of Proceedings (cont)                                         AR20110012408



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