IN THE CASE OF:	  

		BOARD DATE:	  22 August 2013

		DOCKET NUMBER:  AR20120022732 


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 correction of his WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) for the period ending 20 January 1947 to show award of the Purple Heart.

2.  He states he should have been awarded the Purple Heart for injuries sustained in May 1945 when the truck he was travelling in was hit by a German bomb.  He also states he was not aware that he could receive the Purple Heart until December 1992 and he has tried in the past to seek correction of his discharge document through other channels to include the Department of Veterans Affairs (DVA) and a Congressional office.  He attributes this problem to the fact that a fire destroyed many records stored in St. Louis, MO.

3.  He provides:

* WD AGO Form 53-55
* the front page of a WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty or Retirement)
* WD AGO Form 100 (Separation Qualification Record)
* a photograph
* a newspaper article




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.  His military record is not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed that his records were lost or destroyed in that fire.  However, there were sufficient documents on file for the Board to conduct a fair and impartial review of this case.  This case is being considered using a reconstructed record provided by the NRPC.

3.  His record contains a WD AGO Form 53-55 which shows he was inducted into the Army of the United States on 19 March 1943 and entered active service on 26 March 1943.  He was honorably discharged for the purpose of enlisting in the Regular Army on 4 December 1945.  This form also contains the following pertinent information:

	a.  Item 32 (Battles and Campaigns) shows he participated in the Central Europe campaign.

	b.  Item 33 (Decorations and Citations) does not show he was awarded the Purple Heart.

	c.  Item 34 (Wounds Sustained in Combat) shows "NONE."

	d.  Item 36 (Service Outside Continental U.S. and Return) shows he arrived in the European Theater of Operations in March 1945 and departed in December 1945.

4.  The applicant provided the front page of a WD AGO Form 38 which shows he underwent a physical examination on 19 December 1946 at Fort Dix, NJ.  Item 11 (List all significant diseases, wounds, and injuries.  State circumstances under which wounds or injuries were incurred and date of onset) of this form shows he had no symptoms of malaria, syphilis, or dysentery.  However, he underwent an appendectomy in Germany at the 9th Evacuation Hospital; he smashed his right hand in Germany in 1945, but had no Army hospitalization; had rheumatism in his right shoulder, but had received no treatment for this condition.  This item contains the entry "(over)," but the reverse side of the document is not available for review.

5.  His record contains and he also provides a WD AGO Form 53-55 which shows he enlisted in the Regular on 5 December 1945.  He was honorably discharged on 20 January 1947.  This form also contains the following pertinent information:

	a.  Item 32 shows "NONE."

	b.  Item 33 does not show he was awarded the Purple Heart.

	c.  Item 34 shows "NONE."

	d.  Item 36 shows he arrived in the European Theater of Operations in March 1945 and departed in December 1945.

6.  His WD AGO Form 100 shows he served in combat in Central Europe, but does not indicate he sustained any injuries as a result of hostile action during this period of service.

7.  His record contains documents showing he submitted requests for award of the Purple Heart through the DVA and the American Legion to the Army Personnel Center and the NPRC during the period 1992 to 1995, all of which were denied due to lack of evidence showing he had sustained an injury as the result of a hostile action.

8.  His record is void of any evidence and he has not provided any evidence showing he sustained a wound as a result of hostile action and that the wound was treated by medical personnel, and made a matter of official records.

9.  He provides:

	a.  A photograph he attests depicts him at the 19th Field Hospital located in Le Mans, France in 1945.

	b.  An undated newspaper article from an unknown publication which provides a biography of his life from birth until at least 1981.  This article contains the following sentence: "[The applicant] was injured in the shoulder by a German bomb which blew up the truck in which he was riding, throwing him through the air.  Flown back to France to a hospital, he rejoined G Company before it entered Munich, Germany.”  This article does not list the Purple Heart amongst his authorized awards and decorations.

10.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have been treated by medical personnel, and the medical treatment must have been made a matter of official records.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show he was awarded the Purple Heart was carefully considered.

2.  His WD AGO Form 53-55 shows he sustained no wounds in action.

3.  Evidence shows he underwent an appendectomy at an Evacuation Hospital in Germany, smashed his hand, and suffered from rheumatism in his right shoulder.
However, there is no evidence in the available record and the applicant has not provided sufficient evidence which shows he sustained an injury as a result of hostile action or that he received treatment for injuries sustained as a result of hostile action.

4.  The non-contemporaneous newspaper article is duly noted, however, in the absence of corroborating evidence the article alone is not considered sufficient evidence upon which to base award of the Purple Heart.

5.  Regrettably, based on the foregoing there is insufficient evidence to award him the Purple Heart.

6.  This action in no way diminishes the sacrifices made by the applicant in service to our Nation.  He 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)                                         AR20120022732





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ABCMR Record of Proceedings (cont)                                         AR20120022732



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