IN THE CASE OF

		BOARD DATE:	    24 July 2014

		DOCKET NUMBER:  AR20130021479 


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 that he was wounded in combat on 28 July 1944 but he was not awarded the Purple Heart.  He was hit in the right shoulder with shrapnel from a German 88mm mortar artillery shell.  Five other men around him were killed by the same shell but he cannot recall their names as replacements came and went very quickly at that time.  His wounds did not require his evacuation and he could not get treatment due to the fact that his aid station had taken a direct hit killing both of his doctors during the same attack.  He was lucky to be alive and continued with his mission.  

3.  The applicant provides his WD AGO 53-55 (Enlisted Record and Report of Separation-Honorable Discharge), Honorable Discharge Certificate, and the Combat History of the Second Infantry Division in World War II written by A. L. Castillo. 

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 complete military records are not available for review.  A fire destroyed approximately 18 million service members’ records at the NPRC 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.  His WD AGO Form 53-55 contains the following pertinent information:

* he was inducted into the Army of the United States on 21 January 1943 and he entered active service on 28 January 1943
* his military occupational specialty (MOS) was 729 (Squad Leader)
* his unit of assignment was Headquarters and Headquarters Company, 1st Battalion, 9th Infantry
* he served in the European-African-Middle Eastern Theater of Operations (EAMETO) from 19 October 1943 until his departure en route to the continental United States (CONUS) on 12 July 1945
* he held the rank of corporal (CPL) at the time of his separation
* he was honorably discharged on 12 September 1945 after completing
2 years, 7 months, and 22 days of total active service
* he served a total of 10 months and 11 days in CONUS
* he served a total of 1 year, 9 months, and 11 days of foreign service

4.  His WD AGO Form 53-55 further shows in:

* item 31 (Military Qualification and Date) he was awarded the Combat Infantryman Badge
* item 32 (Battles and Campaigns) he participated in the Northern France, Central Europe, Normandy, Rhineland, and Ardennes campaigns
* item 33 (Decorations and Citations) he was awarded the:

* Good Conduct Medal
* EAME Campaign Medal with Silver Star
* Distinguished Unit Badge
* Bronze Star Medal
* World War II Victory Medal

* item 34 (Wounds Received in Action) the entry "NONE"
5.  There are no documents in the available record confirming he was wounded in action or awarded the Purple Heart while serving on active duty.

6.  He provides an article titled the "Combat History of the Second Infantry Division in World War II" which appears to be an unofficial account of the unit's battle history which references an enemy attack that began on 28 July 1944.  The applicant's name is not referenced in this document.

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 requests award of the Purple Heart.

2.  Regulatory guidance states in order to support the award of the Purple Heart there must be evidence not only that a member was wounded as a result of enemy action, but also that the wound required treatment by military medical personnel, and this treatment was made a matter of official record.

3.  Item 34 of his WD AGO Form 53-55 contains the entry “None” indicating he was not wounded in action during the period of active service covered by the separation document.  Further, there are no documents in the available reconstructed record.  The combat history of his unit of assignment provided by the applicant is insufficient evidence to show he was ever wounded in action.  As a result, absent any evidence confirming he was wounded in action and/or awarded the Purple Heart by proper authority, the regulatory burden of proof necessary to support award of the Purple Heart has not been met in this case.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relied.

5.  The applicant and all others concerned should know that 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.



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)                                         AR20130021479





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ABCMR Record of Proceedings (cont)                                         AR20130021479



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