IN THE CASE OF:	  

		BOARD DATE:	  5 June 2012

		DOCKET NUMBER:  AR20110023771 


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 that the records of his father, a former service member (FSM), be corrected by awarding him the Purple Heart and correcting his WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) to show his wounds/injuries.  

2.  The applicant states, in effect, that the FSM was injured in action against enemy forces in June 1945 and was treated at the 127th General Hospital in Nancy, France from 16 June to 3 July 1945 for a ruptured tympanic membrane of the right ear and should have been awarded the Purple Heart.  He goes on to state that the Human Resources Command (HRC) Awards and Decorations Branch denied the award of the Purple Heart to the FSM because hostilities ended in the European Theater of Operations on 8 May 1945 (Germany’s formal surrender) and the FSM’s injury occurred after that date.  However, Army Regulation 600-8-22 (Military Awards) defines “Wartime Criteria” as a period of formally declared war and for a 1-year period after cessation of hostilities.  Additionally, official World War II (WWII) historical records show that active pockets of hostilities continued after 8 May 1945, creating ongoing combat and wartime conditions for U.S. Armed Forces service members.    

3.  The applicant provides a two-page letter explaining his application, a copy of the denial letter from the HRC Awards and Decorations Branch, a copy of his power of attorney to act in his father’s behalf, copies of the FSM’s WD AGO Form 53-55, a copy of the FSM’s Report of Physical Examination of Enlisted Personnel Prior to Discharge, copies of clinical records during his admission to the hospital, and pages from Army Regulation 600-8-22 that pertain to award of the Purple Heart.

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 for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.

3.  The FSM was born on 22 December 1922 and enlisted in the Regular Army in Philadelphia, Pennsylvania on 11 July 1942.  He completed his training as a utility repairman (Engineer Branch) and departed for the European Theater of Operations (ETO) on 29 April 1943.

4.  On 16 June 1945, he was admitted to the 127th General Hospital in Nancy, France for a ruptured tympanic membrane of the right ear and he remained hospitalized until he was released on 3 July 1945.

5.  He departed the ETO on 3 November 1945 for the United States and was transferred to Indiantown Gap Military Reservation (IGMR) in Pennsylvania.  He underwent a separation physical which noted that his ruptured tympanic membrane of the right ear was the result of enemy action, firing of guns, June 1945 and that he was admitted to the 127th General Hospital, Nancy, France.

6.  On 20 November 1945, he was honorably discharged at IGMR.  He was awarded the Good Conduct Medal, the European-African-Middle Eastern Theater Service Ribbon with three bronze service stars, and the World War II Victory Medal.  In block 34 of his WD AGO Form 53-55 under “Wounds received in Action” is the entry “NONE.”
7.  On 3 November 2011, in response to a request from the FSM’s congressional representative regarding the award of the Purple Heart, the Chief, HRC Awards and Decorations Branch informed the congressional representative that after reviewing the available evidence, the award of the Purple Heart could not be authorized because the applicant’s injury was sustained on 16 June 1945 and hostilities had ended in the ETO on 8 May 1945.

8.  Victory in Europe Day or VE Day commemorates 8 May 1945 as the date when WWII Allied Forces formally accepted the unconditional surrender of the Armed Forces of Nazi Germany and the end of Adolf Hitler’s Third Reich.    

9.  Army Regulation 600-45 (Personnel – Decorations) in effect at the time , provided that the Purple Heart is awarded to members of the Armed Forces of the United States who are wounded in action against an enemy of the United States or as a direct result of an act of such enemy, provided such wound necessitates treatment by a medical officer.  For the purpose of awarding the Purple Heart, a wound is defined as an injury to any part of the body from an outside force, element, or agent sustained as a result of a hostile act of the enemy or while in action in front of the enemy.

10.  Army Regulation 600-8-22 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.  

11.  Army Regulation 600-8-22 also defines “Wartime Criteria” as: 

* A period of formally declared war and for 1 year after the cessation of hostilities
* A period of military operations against an armed enemy and for 1 year after cessation of hostilities.

12.  A ruptured eardrum or perforated tympanic membrane as it is medically known, is a hole or tear in the eardrum, the thin drum-like tissue that separates the ear canal from the middle ear.  A ruptured eardrum can result in hearing loss and make the middle ear vulnerable to infections or other injury.  A ruptured eardrum usually heals within a few weeks without treatment but sometimes may require treatment or surgery to effect repair.




DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his father meets the criteria for award of the Purple Heart because he was injured as a result of enemy action, treatment for the injury was made and the treatment was made a matter of record has been noted and appears to have merit.

2.  While it cannot be determined with any degree of certainty based on the lack of records and the passage of 65+ years exactly when the FSM was injured, the available evidence of record clearly shows that at the time of his discharge, when his records were available, entries were made on his separation physical indicating that his injury was the result of enemy action and the firing of guns.  It also indicates he was treated at the 127th General Hospital.

3.  Notwithstanding the HRC’s position that the Purple Heart should be denied because hostilities ended on 8 May 1945, that date is actually the date of the unconditional surrender of Nazi German forces and does not necessarily mean that all hostilities had ended.  In fact, given the sheer magnitude of forces and the land masses involved, it is not logical to presume that all hostilities ceased on the day of surrender.  Additionally, the applicable regulation does not specifically limit the award of the Purple Heart to the date of surrender of enemy forces.  In any event, the FSM should be given the benefit of any doubt in this matter, especially since his records were destroyed in the 1973 fire at St. Louis.

4.  Accordingly, it would be in the interest of justice at this time to afford the FSM the benefit of any doubt by awarding him the Purple Heart for wounds received during WWII on 16 June 1945. 

BOARD VOTE:

___X____  ___X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding the FSM the Purple Heart for wounds received during WWII on 16 June 1945.

2.  The Board wants the applicant and all others to know that the sacrifices he made in service to the United States during WWII are deeply appreciated.  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)                                         AR20110023771





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110023771



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1