IN THE CASE OF:	  

		BOARD DATE:	  31 July 2012

		DOCKET NUMBER:  AR20120003103 


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 he be awarded the Purple Heart.

2.  The applicant states that he was injured while on patrol in Germany on 16 December 1952 when a TNT (trinitrotulene – also known as dynamite) explosion occurred and he was hit with debris. 

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States) and copies of his medical records obtained from the Department of Veterans Affairs.

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 in 1973.  It is believed the FSM'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 applicant was inducted in Chicago, Illinois on 25 February 1952.  He completed his training and was transferred to Germany for assignment to Company C, 118th Engineer Battalion.

4.  On 16 December 1952, the applicant was standing near a demolition shell which was blown off and while the applicant was running away a heavy piece of hard dirt hit his right leg causing a compound fracture of the right fibula and tibia.  He was treated at Hohenfels, Germany and none of the treatment records indicate that the injury was the result of hostile action.

5.  On 6 February 1954, he was honorably released from active duty at Fort Sheridan, Illinois.  He had served 1 year, 11 months, and 12 days of active service.  He was awarded the National Defense Service Medal and the Army of Occupation Medal.

6.  Army Regulation 672-5-1 (Decorations and Awards) 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.

7.  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. 

8.  Included as part of the Department of Defense Appropriations Act for fiscal year 1994 was an amendment to the rules governing award of the Purple Heart.  While the original rules established that the Purple Heart would be awarded to 


individuals killed or wounded as a result of hostile action the amendment enabled the Secretaries of each department to award the Purple Heart to members of the armed forces who were killed or wounded in action by weapons fire, while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States.  This ruling granted the service Secretaries the authority to award the Purple Heart to individuals directly engaged in armed conflict who were killed or wounded as a result of "friendly fire."

DISCUSSION AND CONCLUSIONS:

1.  The available evidence clearly shows the FSM was injured; however, there is no evidence in the available records that show his injury was caused by hostile action of any kind or that hostile actions were occurring at the time.

2.  The records he has provided that were created at the time also do not confirm his injury was related to any type of enemy action.

3.  Therefore, in the absence of sufficient evidence to establish that his injury was caused as a result of enemy action there appears to be no basis to award the applicant the Purple Heart.
  
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 him in service to the United 


States.  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)                                         AR20120003103



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ABCMR Record of Proceedings (cont)                                         AR20120003103



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