IN THE CASE OF:	  

		BOARD DATE:	  14 June 2012

		DOCKET NUMBER:  AR20110024144 


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, in effect, reconsideration of his earlier request for correction of his records to show award of the Purple Heart for wounds he received during World War II. 

2.  He states, in effect, the Purple Heart does not appear on his discharge document.  It was proven that his scars were from shell fragment wounds and he was in the hospital.

3.  He provides a statement from his spouse, a Department of Veterans Affairs (VA) Rating Decision, dated 1 April 2011, and his WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge).

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110010300 on 1 December 2011.

2.  The applicant provides a statement from his spouse and a VA rating decision as new evidence that will be considered by the Board.

3.  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 in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there are sufficient documents available to conduct a fair and impartial review of this case.

4.  His WD AGO Form 53-55 shows he:

* was inducted into the Army of the United States and entered active duty on 18 September 1944 and honorably discharged on 14 November 1946
* served with Company D, 132nd Infantry
* participated in the South Philippines campaign in the Pacific Theater of Operations 

5.  His WD AGO Form 53-55 also shows he was awarded the Asiatic-Pacific Campaign Medal with one bronze service star, Philippine Liberation Medal with one bronze service star, World War II Victory Medal, Good Conduct Medal, Army of Occupation Medal with Japan Clasp, Combat Infantryman Badge, Marksman Marksmanship Qualification Badge with Rifle Bar, and Lapel Button.

6.  His WD AGO Form 53-55 does not show he received any wounds in action.

7.  The VA Rating Decision, dated 1 April 2011, that was provided by the applicant indicates he was granted service connection for three scars on the left lower leg, residuals of shell fragment wounds, left leg with an evaluation of 20 percent, effective 21 January 2009.  The reasons for this decision were listed as:

	a.  The applicant credibly testified that he sustained superficial shell fragment wounds to the left leg during combat in World War II.

	b.  The applicant’s VA Examination Results of 16 October 2009 showed objective findings of three superficial scars of the left lower leg measuring 
2.5x.8 centimeters, 1 centimeter in diameter, and .8 centimeter diameter, which he reported as tender on examination (and also as tender during testimony at his Decision Review Officer hearing) but without any objective physical examination findings of underlying muscle damage or causing any functional impairment.

	c.  The VA examiner could not determine the origin of these scars without resorting to speculation.  The applicant reported he was never involved in a shoot-out or other incident involving gunfire or shell fragments while he was a police officer following his military service.  Further, there was no additional evidence within the applicant’s claims file that would account for the applicant sustaining shell fragment, gunshot, or any other type of wounds to the left lower leg following military service. 

	d.  Reasonable doubt was resolved in favor of the applicant and it was determined he suffered shell fragment wounds to the left leg during combat in World War II that have resulted in the three tender scars of the left lower leg shown by objective findings during his latest VA examination.  

8.  The applicant’s spouse submitted a statement attesting that her husband is 85 years old and has just entered a rehabilitation facility after his long stay in two hospitals since 23 August 2011.  She states the applicant has been trying to get his Purple Heart and he has worked on this issue for several years.  

9.  Army Regulation 600-8-22 (Military Awards) provides for award of the Purple Heart to a member of the Armed Force of the United States who, while serving in any capacity with one of the U.S. Armed Services after 5 April 1917, has been wounded or killed, or who has died or may die after being wounded in any action against an enemy of the U.S.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

10.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that it was proven his scars were from shell fragment wounds and he was in the hospital.  However, there is no evidence or medical documentation which indicates he was wounded as a result of hostile action during World War II.  In addition, his WD AGO Form 53-55 does not reflect he received any wounds in action.

2.  In the absence of corroborating evidence which shows the applicant was wounded or injured as a result of hostile action during World War II, there is insufficient evidence upon which to base award of the Purple Heart in this case.

3.  The available evidence shows the VA granted the applicant service connection for three scars on the left lower leg, residuals of shell fragment wounds, left leg with a disability rating of 20 percent.  However, the VA examiner stated he could not determine the origin of the scars without resorting to speculation.  The VA rating decision is insufficient to show the applicant's injuries were incurred as a result of hostile action or that he was treated for those injuries.

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 AR20110010300, dated 1 December 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)                                         AR20110024144



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ABCMR Record of Proceedings (cont)                                         AR20110024144



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