IN THE CASE OF:	  

		BOARD DATE:	  28 February 2012

		DOCKET NUMBER:  AR20110017490 


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 (PH).

2.  The applicant states:

	a.  his medical record was not properly documented to show he sustained an ear injury during an attack, thereby qualifying him for award of the PH; and

	b.  the Army has compensated him for tinnitus since sustaining this ear injury.

3.  The applicant provides:

* DD Form 149 (Application for Correction of Military Record)
* two undated letters of support from his granddaughter
* National Archives (NA) Form 13055 (Request for Information Needed to Reconstruct Medical Data)
* NA Form 13075 (Questionnaire About Military Service)
* Honorable Discharge Certificate
* WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge)
* WD AGO Form 100 (Separation Qualification Record)
* Department of Veterans Affairs (VA) letter, dated 1 July 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 applicant's military records are not available for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center (NPRC) in 1973.  It is believed his records were lost or destroyed in that fire.  This case is being considered using the NPRC reconstructed record which primarily consists of his WD AGO Form 53-55.

3.  The applicant's WD AGO Form 53-55 shows he enlisted in the Army on
9 December 1942 and he entered active service on 14 May 1943.  He held military occupational specialty (MOS) 1607 (Heavy Mortar Crewman) and he served in the European-African-Middle Eastern Theater of Operations (EAMETO) from 10 October 1944 to 12 August 1945.

4.  His WD AGO Form 53-55 further shows he participated in the Ardennes, Rhineland, and Central Europe campaigns.  It also shows he earned the following awards":

* American Theater of Operations (ATO) Medal (now known as the American Campaign Medal)
* European-African-Middle Eastern Theater of Operations (EAMETO) Medal (now known as the EAME Campaign Medal)
* Army Good Conduct Medal
* World War II Victory Medal

5.  Item 34 (Wounds Received in Action) of his WD AGO Form 53-55 contains the entry "None."  There are no documents in his reconstructed NPRC record that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty.  There are also no medical treatment 

records or hospital reports on file that indicate he was ever treated for wounds received as a result of enemy action during his active duty tenure.

6.  The applicant was honorably discharged from active service on 16 November 1945 for the convenience of the Government at demobilization.  He completed
1 year, 11 months, and 16 days of continental service and 11 months and
22 days of foreign service, for a total of 2 years, 11 months, and 8 days of active service.

7.  The applicant provides two letters of support from his granddaughter wherein she:

	a.  states her many attempts to obtain her grandfather's PH award.

	b.  provides a summary of her grandfather's military history indicating he sustained an injury to his ear during the Battle of the Bulge when an incoming shell detonated right next to the him, leaving his ear bleeding.

	c.  states her grandfather was awarded the Bronze Star Medal for his actions during the Battle of the Bulge and he is likewise entitled to the PH for the ear injury he sustained during this time.

	d.  states her grandfather's ear injury resulted in a residual condition called Tinnitus (ringing of the ears) for which he is currently receiving compensation.

8.  The applicant provides a VA letter, dated 1 July 2011, that shows he receives compensation for a service-connected disability.

9.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH.  It states that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that the wound required treatment by medical personnel, and a record of this medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The criteria for award of the Purple Heart requires the submission of substantiating evidence to verify the injury/wound was the result of hostile action, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

2.  The applicant's VA letter was noted.  However, it does not provide the facts surrounding how he sustained his service-connected disability to confirm it was combat-related by enemy fire.  Notwithstanding his sincerity, there is no evidence in his reconstructed record that shows he was wounded or injured as a result of hostile action or treated for such wounds.  Regrettably, absent evidence that conclusively shows he sustained wounds or injuries as a result of hostile action, that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is an insufficient evidentiary basis for awarding the Purple Heart to the applicant in this case.

3.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by him 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)                                         AR20110017490



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ABCMR Record of Proceedings (cont)                                         AR20110017490



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