IN THE CASE OF:
BOARD DATE: 11 September 2014
DOCKET NUMBER: AR20130021221
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:
a. his records were destroyed by a fire in St. Louis in 1973;
b. he believes he is entitled to award of the Purple Heart, due to nerve damage and fractures to the metatarsal bones in both of his feet due to a concussion from enemy artillery shells while he was in France in August 1944;
c. his charred records indicate he was treated at a field hospital in France in August 1944;
d. his physical exam prior to this discharge states, "weak arches and metatarsal"; and
e. he has a 20 percent service-connected disability rating from the Department of Veterans Affairs (VA) and is in priority group 3.
3. The applicant provides:
* his WD AGO Form 53-55 (Enlisted Record and Report of Separation, Honorable Discharge)
* a self-authored statement
* a partial copy of a WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty, or Retirement)
* one page of his medical record
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 for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973. It is believed that the applicant's records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.
3. The applicant's available record shows he was inducted into the Army of the United States on 8 April 1943 and entered active duty on 15 April 1943.
4. He submitted and his record contains:
a. A WD AGO Form 38, dated 23 October 1945, which shows he underwent a physical examination prior to his discharge and that exam revealed he had weak arches and metatarsal. This form is silent on the issue of wounds and injuries.
b. Documents that show:
(1) he was assigned to the 373d Engineer General Support Regiment at the time they were awarded the Meritorious Service Unit Plaque by General Orders Number 28, dated 11 March 1945;
(2) he participated in the Battle of Northern France and was awarded the Northern France Campaign medal; and
(3) he was authorized to wear three overseas service bars.
c. A page from his medical record, which shows he was seen at the 373rd Engineer Field Hospital in France in August 1944; however, this record is silent on the purpose for his treatment.
5. On 24 October 1945, he was honorably discharged from the Army. His WD AGO Form 53-55 reveals:
* item 33 (Decorations and Campaigns) does not show award of the Purple Heart
* item 34 (Wounds Received in Action) the entry "None"
* item 36 (Service Outside Continental United States and Return):
* Date of Arrival, 24 September 1943
* Destination, European Theater
* Date of Departure, 1 July 1945
* Date of Arrival in United States, 10 July 1945
6. 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 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 contention that his record should be corrected to show award of the Purple Heart was carefully considered.
2. The sincerity of his contention is not in question; however, there is no evidence in the available record, and the applicant has not provided sufficient evidence, which shows he sustained injuries as a result of hostile action or that he received treatment for injuries that were sustained as a result of hostile action. Regrettably, there is an insufficient evidentiary basis for awarding him the Purple Heart or amending his WD AGO Form 53-55 to show he sustained a wound as the result of hostile action.
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) AR20130021221
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ABCMR Record of Proceedings (cont) AR20130021221
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