IN THE CASE OF:	  

		BOARD DATE:	  6 December 2012

		DOCKET NUMBER:  AR20120012029 


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 a Member of Congress, correction of his
WD AGO Form 53-55 (Enlisted Record and Report of Separation) to show a head injury in item 34 (Wounds Received in Action) and, in effect, a Purple Heart.  

2.  The applicant states his unit was engaged in heavy combat between 11 and 16 December 1944 and he received a fragment wound from an enemy mortar shell that hit his tank.  They were engaged in heavy combat at the time; therefore, he did not report the injury or seek medical treatment.  

3.  The applicant provides a supporting letter from his daughter and the 
16 documents identified in that letter in support of his request.  

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 record is not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Record Center (NPRC) in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  This case is being considered using reconstructed records maintained at the NPRC which includes a WD AGO Form 53-55, WD AGO Form 100 (Separation Qualification Record), and the documents submitted by the applicant.   

3.  The applicant’s WD AGO Form 53-55 shows he was inducted into the Army on 20 January 1943 and he entered active duty on 27 January 1943.  It further shows he served in the European Theater of Operations (ETO) from 20 January 1944 to 30 September 1945, and he was credited with participating in the Normandy, Northern France, Rhineland, Ardennes, and Central Europe campaigns of World War II (WWII).  Item 33 ((Decorations and Citations) does not include the PH in the list of awards entered.  Item 34 (Wounds Received in Action) contains the entry “None.”  Further, the WD AGO Form 53-55 shows he was honorably separated, on 19 October 1945, in the rank of sergeant, after completing 2 years, 8 months, and 23 days of military service.  

4.  There are no documents in the NPRC file confirming the applicant was wounded in action or awarded the PH while serving on active duty.  

5.  The applicant provides a third-party statement from an individual who indicates he served with the applicant during World War II.  He states the applicant was mildly wounded in the ETO between 15 and 17 December 1944 in the vicinity of Kesternich, Germany.  This individual claims he and the applicant were members of a tank crew and the applicant was wounded when an exploding mortar shell fragment hit the applicant's forehead and knocked him over.  He states the applicant had a bloody scrape or cut on his forehead but he kept doing his job.  

6.  The applicant also provides a unit after action report, dated 5 January 1945.  This report covered the unit's actions during the period 1 to 31 December 1944.  The report provides the number of casualties sustained by category during the period.  It does not identify the casualties by name.  



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.  The applicant’s request that his WD AGO Form 53-55 be corrected to document the fact that he was wounded in action and to show award of the PH has been carefully considered.  However, by regulation, in order to support award of the PH there must be evidence not only that a member was wounded as a result of enemy action, but the wound must have required treatment by military medical personnel, and this treatment must have been made a matter of official record.  

2.  The applicant’s WD AGO Form 53-55 contains the entry “None” in item 34, which indicates he was not wounded in action while on active duty, and the applicant and the third party who provided a statement both indicate he was never treated for the wound in question.  As a result, absent any documentary evidence confirming the applicant’s sustained a wound as a result of enemy action that required medical treatment, the regulatory burden of proof necessary to support award of the PH has not been met in this case.  

3.  The applicant and all others concerned should know that this action related to award of the PH 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.  

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 for correction of the records of the individual concerned.




      _______ _   __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)                                         AR20120012029



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ABCMR Record of Proceedings (cont)                                         AR20120012029



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