IN THE CASE OF:	  

		BOARD DATE:  21 November 2013

		DOCKET NUMBER:  AR20130005701 


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 he lost a lot of his hearing in combat; he also received a shrapnel wound on his right thigh and he still has a scar.  He was treated by a medic and released.  He has been suffering from hearing loss and pulmonary problems since being discharged.  He also developed asthma and chronic obstructive pulmonary disease (COPD).  He received disability compensation from the Department of Veterans Affairs (VA) for his loss of hearing during his military service. 

3.  The applicant provides a VA Rating Decision, a clinical summary, three letters, and two statements of support.

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 complete 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 the applicant's records were lost or destroyed in that fire.  However, the applicant's reconstructed record contains his WD AGO Form 53-55 (Enlisted Record and Report of Separation) which is sufficient 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 11 March 1943 and he entered active service on 18 March 1943.  At the time of his separation, he held military occupational specialty 189 (Rigger).

4.  This form also shows his last unit of assignment was with Company B, 204th Engineer Battalion.

5.  His WD AGO Form 53-55 shows he departed the continental United States (CONUS) on 2 January 1944 and arrived in the European Theater of Operations (ETO) on 8 January 1944.  He departed the ETO on 25 August 1945 and arrived back in CONUS on 2 September 1945. 

6.  On 29 October 1945, he was honorably discharged by reason of demobilization.  He completed 1 year, 1 month, and 11 days of continental service and 1 year, 8 months, and 1 day of foreign service.

7.  His WD AGO 53-55 does not show award of the Purple Heart.  Item 34 (Wounds Receive in Action) of his WD AGO Form 53-55 contains the entry "None."

8.  The applicant provides a:

* letter, dated 10 March 1995, wherein it stated, in part, a chest x-ray showed he had features compatible with chronic bronchial disease
* VA Rating Decision, dated 22 January 2010, wherein it shows he was granted service-connected disability for bilateral hearing loss with an evaluation of 10 percent effective 3 October 2008
* Clinical Summary, dated 2 November 2012, wherein it shows he was diagnosed with a cough, obstructive sleep apnea, nonspecific allergic rhinitis, and COPD
* letter, dated 13 February 2013, wherein it stated he was treated at the Lincare Pulmonary Rehab facility, Delray Beach, FL, from April to December 2012 for shortness of breath, COPD, and lung cancer
* letter, dated 19 February 2013, wherein a medical doctor stated he (the applicant) was a patient of his and had a diagnosis of asthma
* two statements of support, both dated 14 February 2013, wherein two friends stated they knew the applicant for over 50 years and he had always suffered from asthma, shortness of breath, coughing, and wheezing

9.  Army Regulation 600-45 (Decorations), then in effect, which governed the award of Army decorations until 23 August 1951, stated the Purple Heart was awarded to citizens of the United States serving with the Army who were wounded in action against an enemy of the United States or as a direct result of an act of such enemy provided such wound necessitated treatment by a medical officer.  This regulation stated that for the purpose of considering an award of the Purple Heart, a "wound" is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.

10.  Army Regulation 600-8-22 (Military Awards), currently in effect, provides that the Purple Heart is awarded for a wound sustained 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.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; and concussion injuries caused as a result of enemy generated explosions.

11.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  The VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.






DISCUSSION AND CONCLUSIONS:

1.  The criteria for the Purple Heart requires the submission of substantiating evidence to verify that a Soldier received a wound/injury as the result of hostile action, the wound/injury must have required medical treatment by medical personnel, and the medical treatment must have been made a matter of official record.

2.  The applicant's WD AGO Form 53-55 does not indicate he received a combat-related wound and he has not provided any evidence that shows he was wounded or injured as a result of hostile action.  Notwithstanding his sincerity that his hearing loss was incurred while on active duty and he received a shrapnel wound to his thigh, in the absence of documentation that conclusively shows he was wounded as a result of enemy action and that he was treated for those wounds, there is an insufficient evidentiary basis for granting the requested relief.

3.  A disability decision rendered by the VA does not establish entitlement to award of the Purple Heart as it does not show the applicant was wounded as the result of enemy action or that he was treated for such wounds.  The VA may award ratings because of a service-connected disability that affects the individual's civilian employability.  

4.  Nevertheless, this action 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)                                         AR20130005701





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ABCMR Record of Proceedings (cont)                                         AR20130005701



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