IN THE CASE OF:	  

		BOARD DATE:	  8 March 2012

		DOCKET NUMBER:  AR20110015771 


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 award of the Purple Heart.

2.  He states he was wounded twice and never received his Purple Heart.

3.  He provides:

* five self-authored letters
* an x-ray
* a Final Summary 
* an Award of Disability Pension
* his WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge)
* photographs
* his Separation Qualification Record
* an article he authored
* copies of membership cards for various veterans organizations
* his Department of Veterans Affairs (VA) identification card
* correspondence from the VA

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 complete 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 (NPRC) in 1973.  It is believed most of his records were lost or destroyed in that fire.  This case is being considered using the documents he provides.

3.  The applicant entered active service on 3 June 1943.  The available records show he served as a truck driver during his World War II service and served in the European-African-Middle Eastern (EAME) Theater from 9 March 1944 to 26 November 1945. 

4.  He provides a Final Summary, dated 21 February 1946, prepared at Lovell General Hospital, Fort Devens, MA, showing he was admitted on 12 December 1945 with pain in the right lower chest on deep inspiration after referral from a Separation Center because of x-ray findings.  The document shows in June 1945 he was hit in the right chest by a gas can, was hospitalized, had a cold and some fever, but was soon discharged to duty.  A chest x-ray prior to separation showed “some lesion.”  An x-ray taken on admission to Lovell General Hospital revealed a pleural thickening at the right base and along the axillary border.  His final diagnosis was acute pleuritis, cause undetermined, and chronic pleuritis secondary to acute pleuritis.

5.  He provides his WD AGO Form 53-55, which shows he was honorably discharged on 1 March 1946 with a Certificate of Disability for Discharge.  

   a.  Item 6 (Organization) shows he was assigned to Battery A, 599th Antiaircraft Artillery (AAA) Battalion. 
   
   b.  Item 33 (Decorations and Citations) shows the:
   
* EAME Campaign Ribbon with five Bronze Battle Stars
* Good Conduct Medal
* World War II Victory Ribbon

   c.  Item 34 (Wounds Received in Action) does not show any entries pertaining to wounds received in action.
   
6.  He provides a picture he states was taken of him when he was brought in by battalion aid men.  He states the picture was given to him by the nurse on duty as a reminder.  He is not identified in the picture.  

7.  He provides a copy of an x-ray made at the VA Hospital, West Palm Beach, FL, on 24 February 2011.  The copy shows arrows drawn from the handwritten notation ?shrapnel?? to two spots on the x-ray, and an arrow drawn from the handwritten notation ?incision made during the war Belgium, 1944 pleurisy? to another spot on the x-ray.  

8.  He provides a letter to him from the VA, dated 8 March 2011, showing the VA informed him they were working on his claim for pleurisy and post-traumatic stress disorder.

9.  He provides an article he wrote, which briefly recounts a wartime experience.  He does not mention being wounded.

10.  He provides self-authored statements in which he states:

   a.  He was wounded twice during his World War II service.  

      (1)  He received shrapnel wounds to his right thigh and left shin when his convoy was shelled or bombed while he was assigned to deliver supplies to units of the VIII Corp, 9th Army.  
   
      (2)  He was wounded a second time in November 1944 near Sedan, Belgium.  While unloading a truck, a bomb exploded nearby.  He was knocked to the ground by dirt and flying gas cans, one of which struck him on the head.  He ran for cover behind a stone wall.  He felt a sting on his right chest, and blood was streaming down his neck.  He states he was unconscious when battalion aid men brought him to a field hospital.  A piece of shrapnel had just grazed his skull, but wounds in his chest required surgery to remove shrapnel.  He states his x-rays still show two spots which are from this surgery.
   
   b.  He was released to duty after about a week after his second wounding and later contracted pleurisy during the Battle of the Bulge.  He still suffers from pleurisy caused by his wounds.
   
   c.  Record of his treatment at Lovell General Hospital shows the incision made during the war.
11.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against an enemy or 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 by medical personnel, and the medical treatment must have been made a matter of official record.

12.  A review of the FSM's available records indicates entitlement to an award that is not shown on his WD AGO Form 53-55.

13.  Army Regulation 600-8-22 states that for award of the Army of Occupation Medal with Germany Clasp qualifying service must have occurred between         9 May 1945 and 5 May 1955.  Service between 9 May 1945 and 8 November 1945 will be counted only if the European-African-Middle Eastern Campaign Medal was awarded for service before 9 May 1945.

14.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) shows World War II units that are authorized occupation credit and, therefore, entitlement to the Army of Occupation Medal.  The pamphlet shows the 599th AAA Automatic Weapons Battalion received occupation credit for Germany for the period 2 May to 30 October 1945.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was wounded twice during his World War II service, and that record of his treatment at Lovell General Hospital prior to his discharge substantiates his claim.  Unfortunately, the record of his treatment at Lovell General Hospital only shows that a chest x-ray showed evidence of a lesion of unspecified origin and that he was diagnosed with pleuritis.  It also shows that he was hit in the chest by a gas can in June 1945, after the war in Europe ended.

2.  He provides an x-ray taken at a VA hospital in 2011, which he states shows evidence of shrapnel.  However, the available records show no evidence of a wound that would have resulted in him retaining shrapnel in his chest.

3.  In the absence of documentation verifying he was wounded as the result of hostile action, that his wound required treatment by medical personnel, and that 
medical treatment of such a wound was made a matter of official record, there is an insufficient basis upon which to award him the Purple Heart.

4.  Evidence shows that the applicant’s records contain an administrative error which does not require action by the Board.  The applicant was awarded the EAME Theater Ribbon (later called the EAME Campaign Medal) for service prior to 9 May 1945 and his unit was awarded occupation credit for Germany.  Therefore, he is entitled to correction of his record to show the Army of Occupation Medal with Germany Clasp, and administrative correction of his records will be accomplished by the Army Review Boards Agency (ARBA) Case Management Division 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.

2.  The Board determined that an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the Case Management Division administratively correct the applicant's records by adding the Army of Occupation Medal with Germany Clasp to item 33 of his WD AGO Form 53-55.

3.  The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices he made in service to our Nation.  The applicant and all Americans should be justifiably proud of his 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)                                         AR20110015771





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ABCMR Record of Proceedings (cont)                                         AR20110015771



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