BOARD DATE:	   26 August 2014

		DOCKET NUMBER:  AR20140000096 


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 records to show:

* he suffered hearing loss in the line of duty
* award of the Purple Heart

2.  The applicant states his records are in error because he did not receive the Purple Heart.

3.  The applicant provides:

* Certificate of Disability for Discharge
* Progress Notes
* Consultation – Request and Report
* Report of Physical Examination
* two letters from Veterans Administration (VA), Salt Lake City, Utah, adjudication officers
* Statement in Support of Claim
* letter from Audiology Associates of Salt Lake City, Utah
* VA Rating Decision
* news article, "Carlsons United This Week"
* Honorable Discharge Certificate
* letter from the National Personnel Records Center (NPRC)


* WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge)
* Congressional correspondence

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 and medical records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the NPRC in 1973.  It is believed the applicant's records were lost or destroyed in that fire.  The case is being considered using his WD AGO 
Form 53-55, NPRC reconstructed records, and documents provided by the applicant.

3.  The applicant was inducted into the Army of the United States on 1 August 1943 and entered active duty service on 21 August 1943.

4.  His WD AGO Form 53-55 shows:

* his military occupational specialty was 604 (Machine Gunner)
* on 5 June 1944, he departed the continental United States for the European Theater of Operations and arrived back in the United States on 2 February 1945
* he participated in the Normandy, Northern France, and German campaigns
* he was awarded the Expert Infantryman Badge and European-African-Middle Eastern Campaign Medal
* he did not receive any wounds in action
* he was honorably discharged on 10 March 1945 under the provisions of Army Regulation 615-361 (Enlisted Men – Discharge – Medical)


5.  The applicant provided the following:

	a.  a Certificate of Disability for Discharge, dated 8 March 1945, that shows in November 1944, he was hospitalized after being knocked unconscious by a nearby shell explosion.  He was found unfit for military service due to "psychoneurosis, anxiety hysteria, acute, severe" and recommended for discharge.  His condition was determined to have occurred in the line of duty and was aggravated by service.  His Certificate of Disability for Discharge does not show he experienced hearing loss;

	b.  Progress Notes, dated 9 February 1945, show after a shell explosion within 5 feet of him, he was knocked unconscious for a few days, hospitalized in Paris, and he was later sent to England for treatment;

	c.  a Consultation – Request and Report, dated 28 November 1944, shows he was seen for defective hearing and his prognosis for recovery was good;

	d.  a VA Report of Physical Examination, dated 7 September 1945, shows that in November 1944, he first became aware of his nervousness;

	e.  two letters from Utah VA adjudication officers show he incurred a disability rating of 30 percent for his service from 21 August 1943 through 10 March 1945 and that his condition affecting his nervous system was no longer disabling and compensable on 19 September 1951;

	f.  a Statement in Support of Claim, dated 22 November 2002, shows he provided self-authored statements indicating:

* he was hospitalized for 30 days at the Bushnell Hospital, Brigham City, Utah, upon his return from the war
* he was experiencing hearing loss in his left ear
* he had been diagnosed with a hole in his ear drum
* he wanted a claim opened for left ear hearing loss and his original claim for post-traumatic stress disorder (PTSD) reopened

	g.  a letter from the Audiology Associates of Salt Lake City, Utah, dated 10 July 2002, that shows he had profound hearing loss in his left ear consistent with the noise trauma he experienced in 1945;

	h.  a VA Rating Decision, dated 8 August 2002, that shows he was granted a combined compensable 40-percent disability rating as follows:

* a 30-percent disability rating for dysthymic disorder (previously rated as anxiety reaction and psychoneurosis and neurosothenia under codes no longer used but now claimed as PTSD
* a 10-percent disability rating for bilateral hearing loss
* a 10-percent disability rating for frequent moderate tinnitus in the left ear

	i.  a news article, "Carlsons United This Week," that shows he was admitted to the hospital for injuries received in Luxemburg on Thanksgiving Day and he and his brother, another Soldier, were united in the hospital;

	j.  an Honorable Discharge Certificate that shows it was given at the Bushnell General Hospital, Brigham City, Utah; and

	k.  a letter from the NPRC, dated 15 August 2011, explaining his records were destroyed in a fire and that a reconstructed record with limited information was obtained from alternate sources.

6.  The applicant's reconstructed records contain copies of information from the hospital admission cards created by the Department of the Army Office of the Surgeon General.  These documents show that while serving in the European theater, the applicant was admitted to the hospital on 21 November 1944 and diagnosed with mixed psychoneurosis.  He was discharged for medical reasons but not for any residual condition with a code and his condition was considered in the line of duty.

7.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, does not determine medical unfitness for further military service.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

8.  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 military medical personnel, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The criteria for award of the Purple Heart requires the submission of substantiating evidence to verify the injury/wound was sustained in action against an enemy or as a result of hostile action, that the injury/wound required treatment by medical personnel, and that the medical treatment was made a matter of official record.

2.  He was diagnosed with "psychoneurosis, anxiety hysteria, acute severe," which does not meet the governing criteria in effect at the time for classification as a wound for award of the Purple Heart.

3.  It appears his hearing loss has already been determined to have been incurred in the line of duty as the VA is compensating him for bilateral hearing loss.  However, there is insufficient evidence to show his defective hearing was the result of the shell explosion or simply the result of the noise or war, or what kind of treatment he received for the defective hearing.  Therefore, there is insufficient evidence upon which to award the Purple Heart based upon his hearing loss.

4.  In view of the foregoing, there is no basis for granting the requested relief.

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)                                         AR20140000096



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ABCMR Record of Proceedings (cont)                                         AR20140000096



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