IN THE CASE OF:
BOARD DATE: 3 July 2012
DOCKET NUMBER: AR20120000834
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, award of the Purple Heart and correction of his WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) to show this award and to show he was wounded by being shot in the left forearm while in Germany in 1945.
2. He states he was wounded while serving his country.
3. The applicant provides:
* his partially illegible WD AGO Form 53-55
* a Veterans Administration (VA) Form Letter (FL) 8-38 (Award of Disability Compensation or Pension (Service-Connected))
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 applicants 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 applicants 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 to the Board for review. A fire destroyed approximately 18 million service members' records at the NPRC in 1973. It is believed that the applicant's records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.
3. The applicant's WD AGO Form 53-55 shows he was inducted into the Army of the United States on 14 September 1943 and he entered active service on
5 October 1943. He served in the European Theater of Operations (ETO) during an unknown period and completed 1 year, 4 months, and 4 days of foreign service.
4. Item 34 (Wounds Receive in Action) of his WD AGO Form 53-55 shows the entry "None."
5. The VA FL 8-38 provided by the applicant indicates he was awarded compensation by the VA on account of disability resulting from the following condition held to have been incurred or aggravated during his war service - right knee condition. The letter indicated his gunshot wound to his left forearm and tonsillectomy were service-connected, but not of a pensionable degree.
6. 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.
7. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he was shot in the left forearm in Germany in 1945 and he should be awarded the Purple Heart. However, there is no evidence or medical documentation that 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. The available evidence shows the VA granted the applicant service connection for a knee condition, gunshot wound to his left forearm, and a tonsillectomy. However, the VA rating decision is insufficient to show the applicant's injuries were incurred as a result of hostile action.
3. In the absence of sufficient evidence of record which shows he was wounded or injured as a result of hostile action, there is an insufficient basis upon which to award him the Purple Heart or to correct his WD AGO Form 53-55 to show he was wounded in his left forearm.
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 wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant 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.
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