IN THE CASE OF:
BOARD DATE: 9 February 2012
DOCKET NUMBER: AR20110016447
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, through his United States Senator, requests reconsideration of his previous request for award of the Purple Heart.
2. The Senator states, on behalf of the applicant, he has obtained additional information supporting his claim that he is entitled to the award because he was injured, in combat, by a member of his unit and required medical treatment which is documented.
3. The Senator provides, through his Senator's office, information from "FindLaw For Legal Professionals" website pertaining to the eligibility for the award of the Purple Heart. He also provides a copy of the previous decision made by the Army Board for Correction of Military Records (ABCMR) and a Privacy Release Form.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20100022147, on 17 March 2011.
2. During the original review of the applicant's case there was no evidence available to show his gunshot wounds to the thigh on or about 6 April 1945, occurred in the heat of battle. The evidence showed he sustained gunshot wounds when another Soldier accidently discharged his weapon while reloading. Therefore, the Board concluded there was insufficient evidence to support award of the Purple Heart.
3. The applicant was inducted into the Army of the United States on 11 August 1943. He entered on active duty on 1 September 1943.
4. His WD AGO Form 53-55 (Report of Separation) shows the following:
* light truck driver as his military occupational specialty
* he was assigned to Company I, 328th Infantry Regiment
* he arrived in the European Theater of Operations (ETO) on 1 August 1944
* he departed ETO on 12 January 1946
* he arrived in the U.S. on 22 January 1946
* he was honorably discharged on 27 January 1946
5. The entry "None" is shown in item 34 (Wounds Received in Action) on his WD AGO Form 53-55. His WD AGO Form 1 (Morning Report), dated 10 April 1945, shows he was slightly wounded; however, the words "in action" are struck out.
6. The applicant submits information from "FindLaw For Legal Professionals" website pertaining to the eligibility for the award of the Purple Heart for members killed or wounded in action by friendly fire. This document indicates the following:
a. For the purpose of the award of the Purple Heart, the Secretary concerned shall treat a member of the armed forces described in subsection (b) in the same manner as a member who is killed or wounded in action as the result of an act of an enemy of the United States.
b. A member described in this subsection is a member who is killed or wounded in action by weapon fire while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States, unless (in the case of a wound) the wound is the result of willful misconduct of the member.
c. This section applies to members of the Armed Forces who are killed or wounded on or after December 7, 1941. In the case of a member killed or wounded as described in subsection (b) on or after December 7, 1941, and before November 30, 1993, the Secretary concerned shall award the Purple Heart under subsection (a) in each case which is known to the Secretary before such date or for which an application is made to the Secretary in such manner as the Secretary requires.
7. Army Regulation 600-8-22 (Military Awards) provides 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.
DISCUSSION AND CONCLUSIONS:
1. The evidence submitted has been considered.
2. There is insufficient evidence showing his gunshot wounds to the thigh on or about 6 April 1945, occurred in the heat of battle. The available evidence shows he sustained gunshot wounds when another Soldier accidentally discharged his weapon while reloading.
3. He does not meet the criteria contained in the applicable regulation for award of the Purple Heart. His request should be denied.
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 to amend the decision of the ABCMR set forth in Docket Number AR20100022147, dated 17 March 2011.
_______ _ _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) AR20110016447
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ABCMR Record of Proceedings (cont) AR20110016447
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