BOARD DATE:	  29 January 2013

		DOCKET NUMBER:  AR20120018342 


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 award of the Purple Heart.

2.  The applicant states his records omitted his combat wounds.  He was wounded in the right leg above the ankle requiring removal of shrapnel.  He also received shrapnel above the left knee cap, and he was knocked unconscious due to a concussion from shelling at the same time.  The most severely wounded were removed to a field hospital.  He was left to continue in the front line after regaining consciousness and having his wounds treated.  Most of the medics went with the severely wounded and the ones left were too busy to make notes on his behalf.

3.  The applicant provides:

* Congressional correspondence
* Letter from an individual to a Member of Congress
* Self-authored statement
* WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge)
* Certificate of Service
* Letter from his primary care physician
* Department of Veterans Affairs (VA) rating decision
* Letter from the National Records Personnel Center
* Certification of Military Service
* Morning Report
* WD AGO Form 153 (Record at Time of Reporting for Active Duty of Members of Reserve Components)
* VA clinical records
* Standard Form 88 (Report of Medical Examination)

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 1 March 1943 and entered active duty in Milwaukee, WI on 11 March 1943.  This form also shows that at the time of separation he:

* held military occupational specialty (MOS) 533 Demolition Specialist
* he was assigned to the 555th Engineer Heavy Pontoon Battalion

4.  His WD AGO Form 53-55 shows he departed the continental United States (CONUS) on 18 February 1945 and arrived in the European Theater of Operations (ETO) on 26 February 1945.  He departed the ETO on 4 September 1945 and arrived back in CONUS on 14 September 1945.

5.  He completed 2 years, 10 months, and 24 days of continental service and 6 months and 27 days of foreign service.  He was honorably separated on 4 February 1946 by reason of demobilization.

6.  Item 31 (Military Qualifications and Date) of his WD AGO Form 53-55 shows he was awarded the Expert Marksmanship Qualification Badge with Carbine Bar.

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 Central Europe campaign.

8.  Item 33 (Decorations and Citations) of his WD AGO Form 53-55 shows he was awarded the European-African-Middle Eastern Campaign Medal, American Theater Service Medal, and Army Good Conduct Medal.

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

10.  The applicant submitted:

	a.  A self-authored statement wherein he chronicled his upbringing and entry into the Army.  He states that upon landing in France, the 3rd Army and the 10th Armored Division were put across the Rhine River at Worms.  They then moved to Mannheim and Stuttgart.  The enemy constantly harassed them because they were engineers.  Nevertheless, they built a bridge overnight for the 10th and the 3rd to cross the Rhine River.  The enemy bombarded it the next day and destroyed it.  He was a sniper with a .50 caliber machinegun.  The enemy zeroed in on them and all 5 or 6 members were hit.  Those who were badly injured were evacuated to a field hospital.  He and two other men stayed with the machine gun and the explosives.  A medic finally arrived and took care of them.  The medic removed shrapnel from his right leg just above the ankle and he also had a good-sized cut on his left knee.  The medic put sulfur powder on the cut, took out the shrapnel, bandaged the wound, and gave him a shot of penicillin. Years later, it was determined he was allergic to it.  He was also knocked unconscious at the time and continues to get cluster headaches every now and then.  Additionally, many years later, he was sent for a magnetic resonance imaging (MRI) of the brain due to what doctors believed was a concussion.  He also lost most of his hearing. 

	b.  A letter, dated 4 April 2012, from an individual named RWS to a Member of Congress on behalf of the applicant.  The individual states the applicant had been pursuing the Purple Heart through the VA but was denied.  His records from 1951 show he had a laceration to his left knee and another record from 1952 show he had a concussion.  The concussion led to loss of hearing in both ears and a perforation of the ear.  The VA acknowledges this issue and provides him with hearing aids. 

	c.  A Certificate of Service that shows he served on active duty in the Army of the United states from 11 September 1950 to 16 December 1951. 

	d.  A letter, dated 31 May 2011, from his primary care physician who states the applicant has a dime-sized scar on his lateral right leg that is consistent with a shrapnel wound.  He also had an MRI of his head in 2010 which showed right parietal encephalomalacia that is consistent with a prior injury.  He opines the injuries are consistent with his service in World War II as a demolition man and machine gunner.  He also opines the applicant should receive the Purple Heart. 

	e.  A VA rating decision, dated 12 October 2011, that shows he was denied service-connected disability compensation for a head injury, cluster headaches, balance complications, and residuals of a shrapnel wound. 

	f.  Certification of Military Service which shows he served honorably from 11 March 1943 to 4 February 1946.  

	g.  Morning Report, dated 6 January 1945, that shows his MOS was changed to 189 (Rigger) at Fort Polk, LA. 

	h.  A letter, dated 10 May 2012, from the National Archives and Records Administration informing him that a search of the 555th Engineer Battalion revealed no general orders. 

	i.  Standard Form 88, dated 22 August 1950, that shows the applicant was qualified for entry on active duty.

	j.  Clinical records, dated on various dates between 1950 and 1952, that show he had an allergy and he was diagnosed with urticaria, allergen undetermined.  

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.  Military Personnel (MILPER) Message Number 11-125, issued by the U.S. Army Human Resources Command, dated 29 April 2011, stated the Secretary of the Army had approved Army Directive 2011-07 (Awarding the Purple Heart).  The directive provides clarifying guidance to ensure the uniform application of advancements in medical knowledge and treatment protocols when considering recommendations for award of the Purple Heart for concussions (including mild traumatic brain and concussive injuries that do not result in a loss of consciousness).  This message does not change the standards for award of the Purple Heart for concussion injuries.  This policy is retroactive to 11 September 2001.

14.  A review of the applicant's records indicates entitlement to awards which are not listed on his WD AGO Form 53-55. 

15.  Army Regulation 600-8-22 states:

	a.  The World War II Victory Medal is awarded for service between 
7 December 1941 and 31 December 1946, both dates inclusive.

	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.

	c.  The Army of Occupation Medal with Germany Clasp is awarded for qualifying service that occurred between 9 May 1945 and 5 May 1955.

16.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) is published to assist commanders and personnel officers in determining and establishing the eligibility of individuals for campaign participation credit, assault landing, unit citation emblems, and occupation duty credit during World War II and the Korean War.  This pamphlet shows the 555th Engineer Heavy Pontoon Battalion was awarded occupation credit for Germany from 2 May to 4 July 1945. 

DISCUSSION AND CONCLUSIONS:

1.  With respect to the Purple Heart:  

	a.  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.

	b.  The applicant's recollection of events that took place over 60 years ago together with the medical statement and/or VA rating decision he provides are insufficient and do not show he was wounded as a result of hostile action, treated for his wounds, and his treatment records were made a matter of official records. In other words, he does not meet the criteria for award of the Purple Heart.  

	c.  Concussion and/or traumatic brain injuries qualify for award of the Purple Heart effective 11 September 2001.  His available records do not show he sustained a concussion during World War II but even if they did, the change is only retroactive to 11 September 2001.  

	d.  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.

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

	a.  He served a qualifying period of service for award of the World War II Victory Medal and he should be entitled to correction of his records to show it.

	b.  His records show he was awarded the European-African-Middle Eastern Campaign Medal.  His records also show he participated in one campaign during his service in WWII.  Therefore, he is entitled to a bronze service star to be affixed to his European-African-Middle Eastern Campaign Medal.

	c.  His unit of assignment during WWII received occupation credit for Germany during his tenure with the unit; therefore, he is entitled to award of the Army of Occupation Medal with Germany Clasp and correction of his records to show it.

	d.  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.  As for the Purple Heart, 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 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 adding to item 33 of his WD AGO Form 53-55 the World War II Victory Medal, Army of Occupation Medal with Germany Clasp, and a bronze service star to be affixed to his already-awarded European-African-Middle Eastern Campaign Medal.


3.  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.



      _______ _  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)                                         AR20120018342



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