IN THE CASE OF:
BOARD DATE: 2 December 2014
DOCKET NUMBER: AR20140007137
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, the wife of a deceased former service member (FSM), requests correction of the FSM's WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge) to add the Purple Heart.
2. The applicant states the FSM sustained an injury in the line of duty.
3. The applicant provides:
* letter, dated 16 April 2014
* marriage certificate
* AGO Form 01254 (Transcript of Military Record)
* WD AGO Form 40 (Certificate of Disability for Discharge)
* death certificate
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 FSM was inducted into the Army of the United States and entered active duty on 3 June 1942. He served in military occupational specialty 610 (Antitank Gun Crewman) and attained the rank of technical sergeant.
3. His AGO Form 01254 shows he arrived in the European-African-Middle Eastern Theater of Operations on 1 March 1945 and served with the Antitank Company, 342nd Infantry Regiment in Germany. It is unclear when he departed the theater of operations; however, he returned to the Continental United States on 13 July 1945.
4. His record contains a WD AGO Form 40, issued by the Billings General Hospital, Fort Benjamin Harrison, IN, on 20 September 1945, which shows, after a careful consideration of all the information available and a critical examination, a board of medical officers determined the FSM was unfit for military service because of non-battle traumas.
a. The FSM had limitation of motion in his right foot secondary to a moderate laceration wound of his first toe on the right foot, that presented with dorsal and medial aspects involving the nail, with moderate local vascular damage, and a compound fracture of the comminuted terminal phalanx of the first toe on the right foot.
b. The FSM was accidentally injured in the line of duty in Germany, on 9 April 1945, when a fellow Soldier was hit by enemy fire and dropped the tail gate of an antitank gun on the FSM's foot.
5. His WD AGO Form 53-55 shows he was honorably discharged with a certificate of disability on 24 September 1945. His WD AGO Form 53-55 does not show award of the Purple Heart or indicate that he received any wounds as a result of hostile enemy action.
6. 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. This regulation also states that when contemplating an award of the Purple Heart the key issue commanders must take into consideration is the degree to which the enemy caused the injury. Furthermore, the Purple Heart may be awarded to individuals wounded or killed as a result of "friendly fire" in the "heat of battle" as long as the "friendly" projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.
DISCUSSION AND CONCLUSIONS:
1. The Purple Heart differs from all other decorations in that an individual is not recommended for the decoration; but rather entitled to it upon meeting specific criteria. When contemplating an award of the Purple Heart, the key issue that must be taken into consideration is the degree to which the enemy caused the injury and whether or not the individual was wounded as a result of "friendly fire" in the "heat of battle" by projectile or agent that was released with the full intent of inflicting damage or destroying enemy troops or equipment.
2. The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record. In this case, the FSM's records do not show he was wounded or injured as a result of hostile action. He was treated for non-battle wounds.
3. The evidence of record shows the FSM suffered from a wounded foot when a fellow Soldier was hit by enemy fire and dropped a tail gate on his foot. Regretfully, the degree to which the enemy caused the applicants injury is insufficient to qualify for award of the Purple Heart.
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) AR20140007137
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20140007137
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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