IN THE CASE OF: 

		BOARD DATE:	       25 October 2012

		DOCKET NUMBER:  AR20120003167 


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, correction of his WD AGO Form 53-55 (Enlisted Records and Report of Separation – Honorable Discharge) to show he was wounded in action and, therefore, entitled to award of the Purple Heart.

2.  The applicant states he was injured during World War II (WWII) during an air burst.  As a result, he sustained fragment wounds to the head, face, and hands.  He goes on to state he does not remember the place or date but the medic removed the shrapnel with tweezers.  He also states he subsequently discovered  a piece of shrapnel in his left temple that was unnoticed because he needed a haircut and the medic removed it and asked him questions regarding the award of the Purple Heart.  He continues by stating he told the medic to record the incident, but to make a notation "Do not send Purple Heart to family," because he was married and he did not want his family to think he was seriously wounded or dead.  He also states that at the time of his separation at Camp Beale, CA he told interviewers of his wound and he was told he would have to be delayed for a medical physical examination.  He concludes by stating he elected to have his physical conducted by the Department of Veterans Affairs (VA) and he was subsequently granted disability compensation.

3.  The applicant provides:

* a two-page self-authored letter explaining his application
* a copy of his WD AGO Form 53-55
* a Certification of Military Service
* an article about the 1973 fire at the National Personnel Records Center (NPRC)
* a copy of his Award of Disability Pension
* a copy of a radiology report, dated 20 January 2012
* documents related to his claim of disability compensation

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 NPRC in 1973.  It is believed the applicant's records were lost or destroyed in that fire.  However, the documents provided by the applicant and those contained in a reconstructed record are sufficient to conduct a fair and impartial review of this case.

3.  The applicant was born on 2 July 1918 and was inducted at Fort Dix, NJ on 13 May 1944.  He completed his training as an infantryman and he departed for the European-African-Middle Eastern Theater of Operations (EAMETO) on
1 November 1944. 

4.  He arrived in the EAMETO on 9 November 1944 and he was assigned to the 413th Infantry Regiment.  He participated in the Rhineland and Central Europe campaigns.  The applicant departed the EAMETO on 26 June 1945 en route back to the United States.

5.  On 6 January 1946, the applicant was honorably discharged at Camp Beale, CA.  He completed 1 year, 7 months, and 24 days of total active service.  The WD AGO Form 53-55 he was issued at the time shows in:

* item 31 (Military Qualification and Date (i.e., infantry, aviation, and marksmanship badges, etc.) the:
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-1)
* Combat Infantryman Badge

* item 33 (Decorations and Citations) he was awarded the:

* Bronze Star Medal
* World War II Victory Medal
* European-African-Middle Eastern Campaign Medal
* Army Good Conduct Medal

* item 34 (Wounds Received in Action) the entry "None"

6.  On 13 March 1946, the VA awarded the applicant a disability pension in the amount of $11.50 for a healed shell fragment wound, left temple that was incurred during war service.

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.

DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant's claim that he was wounded in combat during WWII is not in doubt, he has failed to provide sufficient evidence to establish that his injuries were incurred as a result of enemy action and that treatment was made by medical personnel and made a matter of record.

2.  The fact that the VA granted him a disability pension for an injury that occurred during wartime service does not in itself establish his injury was incurred by enemy action or that treatment was made a matter of record.

3.  Unfortunately, his records were destroyed during the 1973 fire at the NPRC and it makes it difficult at best to determine not only what happened but when and where it occurred, especially more than 65 years after the fact. 

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.



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 during WWII.  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)                                         AR20120003167



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ABCMR Record of Proceedings (cont)                                         AR20120003167



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