IN THE CASE OF:	  

		BOARD DATE:	  23 February 2012

		DOCKET NUMBER:  AR20120001430 


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, through his Member of Congress, award of the Purple Heart.  

2.  The applicant states he was wounded in Normandy, France in July 1944.  His records are now burned but he believes he met the criteria for award of the Purple Heart.  At the time, he was assigned to Company K, 39th Infantry Regiment, 9th Infantry Division.  He remembers throwing a grenade into a small building which burst into fire.  All of a sudden, a shell exploded near him knocking him to the ground.  He woke up laying on a stretcher, on a ship going to England for treatment for concussion.  He was later declared physically unfit for combat and sent back to Germany, France, and ultimately the continental United States (CONUS) where he was discharged for disability. 

3.  The applicant provides:

* WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge)
* Honorable Discharge Certificate
* Letter from the National Personnel Records Center
* World War II Identification Card
* Self-authored letter
* Department of Veterans Affairs service-connected disability compensation rating decision


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 to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that his 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 24 October 1942 and entered active duty in New York City, NY, on 7 November 1942.  This form also shows that at the time of separation he was assigned to Company K, 39th Infantry Regiment.

4.  His WD AGO Form 53-55 shows he departed CONUS on 5 March 1943 and arrived in the Mediterranean Theater of Operations (MTO) on 18 March 1943.  He departed the MTO on 3 November 1945 and arrived back in CONUS on 13 November 1945.

5.  He completed 6 months and 19 days of continental service and 2 years, 7 months, and 9 days of foreign service.  He was honorably separated on 21 December 1945 by reason of demobilization.

6.  Item 31 (Military Qualifications and Date) of his WD AGO Form 53-55 shows he was awarded the Combat Infantryman Badge.

7.  Item 32 (Battles and Campaigns) of his WD AGO Form 53-55 shows during his service in World War II, he participated in the Algeria, French Morocco, Normandy, and Sicily campaigns.

8.  Item 33 (Decorations and Citations) of his WD AGO Form 53-55 shows he was awarded the:

* World war II Victory Medal
* Army Good Conduct Medal
* European-African-Middle Eastern Campaign Medal

9.  Item 34 (Wounds Received in Action) of his WD AGO Form 53-55 contains the entry "None."

10.  The applicant submitted various letters to his Members of Congress expressing his request for award of the Purple Heart and a rating sheet, dated 7 January 1947, showing receipt of VA service-connected disability compensation.  This rating sheet shows he suffered from post-traumatic personality disorder and residual of cerebral concussion diagnosed as post traumatic lesions, as a result of his combat service. 

11.  The Purple Heart was established by General George Washington at Newburgh, New York, on 7 August 1782 during the Revolutionary War.  It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action.

12.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained 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, and the medical treatment must have been made a matter of official record.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:  injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and/or concussion injuries caused as a result of enemy generated explosions.

13.  A review of the applicant's records indicates entitlement to an additional award which is not listed on his WD AGO Form 53-55. 

14.  Army Regulation 600-8-22 states:

	a.  the Bronze Star Medal is awarded for heroism and for meritorious achievement or service in military operations against an armed enemy.  The Bronze Star Medal is authorized for each individual who was cited in orders or awarded a certificate for exemplary conduct in ground combat between 7 December 1941 and 2 September 1945 or whose achievement or service during that period was confirmed by documents executed prior to 1 July 1947.  An award of the Combat Infantryman Badge or the Combat Medical Badge is considered to be a citation in orders for the Bronze Star Medal. Therefore, the Bronze Star Medal is to be awarded to individuals who were authorized either badge for service during World War II.

	b.  the European-African-Middle Eastern Campaign Medal is awarded for service within the European African-Middle Eastern theater between 7 December 1941 and 8 November 1945.  The regulation also authorizes a bronze service star based on qualifying service for each campaign listed in appendix B or listed in item 32 of the WD AGO Form 53-55.  This regulation states that authorized bronze service stars will be worn on the appropriate campaign or service medal, including the European-African-Middle Eastern Campaign Medal.

DISCUSSION AND CONCLUSIONS:

1.  The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify that 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 rating decision that shows he was awarded service-connected disability compensation for post-traumatic personality disorder and a residual of cerebral concussion, diagnosed as post traumatic lesions, does not meet the criteria for award of the Purple Heart.  

3.  Notwithstanding his sincerity, there is no evidence in his record that shows he was wounded or injured as a result of hostile action or treated for such wounds.  Regrettably, absent evidence which 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 insufficient basis for awarding the Purple Heart to the applicant in this case.

4.  The evidence shows that the applicant’s records contain administrative errors which do not require action by the Board.  

	a.  The applicant was awarded the Combat Infantryman Badge and should be entitled to award of the Bronze Star Medal based on award of this Combat Infantryman Badge.  

	b.  His records show he was awarded the European-African-Middle Eastern Campaign Medal.  Furthermore, his records show he participated in four campaigns during his service in WWII.  Therefore, he is entitled to four bronze service stars to be affixed to his European-African-Middle Eastern Campaign Medal.

	c.  Therefore, administrative correction of the applicant’s records will be accomplished by the Army Review Boards Agency (ARBA) Case Management Division (CMD) as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

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 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.

3.  The Board determined that administrative errors in the records of the individual concerned should be corrected.  Therefore, the Board requests that the ARBA CMD administratively correct the records of the individual concerned by:

* awarding him the Bronze Star Medal based upon award of the Combat Infantryman Badge for service in World War II from 18 March 1943 to       3 November 1945
* adding to item 33 of the applicant's WD AGO Form 53-55 the Bronze Star Medal and four bronze service stars to be affixed to his already-awarded European-African-Middle Eastern Campaign Medal



      _______ _ 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)                                         AR20120001430



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ABCMR Record of Proceedings (cont)                                         AR20120001430



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