IN THE CASE OF:  	  

		BOARD DATE:  20 January 2015	  

		DOCKET NUMBER:  AR20140009777 


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 to her late father-in-law, a former service member (FSM).

2.  The applicant states her father-in-law was injured during World War II (WWII) and medically discharged from the Army Medical Center in Washington, DC, on 21 July 1944.  He had a severe injury which led to his leg being amputated and him having a lifelong struggle due to the war.  Considering his injury to his leg and the loss of limb by amputation, they feel he should have been awarded the Purple Heart for being injured during his WWII service and not being able to continue to serve due to the severity of the leg injury.  It wasn't until his death that they realized he had not been awarded the Purple Heart.  Her father-in-law deserved the Purple Heart for this war injury.   

3.  The applicant provides copies of the following:

* FSM's:

* Enlisted Record
* WD AGO Form 53 (Report of Separation)
* Honorable Discharge Certificate
* DD Form 1172 (Application for Uniformed Services Identification and Privilege Card)
* death certificate
* son's birth certificate

* letter from the Army Review Boards Agency (ARBA)
* her certificate
* son's and her marriage and driver licenses

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The FSM’s complete military records are not available to the Board for review. A fire destroyed approximately 16 million service members’ records at the National Personnel Records Center in 1973.  It is believed his records were destroyed in that fire.  However, there was sufficient documentation contained in a reconstructed record and those which were submitted by the applicant for the Board to conduct a fair and impartial review of this case.

3.  The FSM's available military records show he enlisted in the Army of the United States on 8 May 1939.  He served as a truck and track driver.  His available records contain the following:

   a.  A Disposition Form which shows on 5 October 1943 he was admitted to the 93rd Evacuation Hospital for an accidental gun-shot wound to his left thigh while serving in Italy.

   b.  A Line of Duty (LOD) Status memorandum, dated 2 November 1943, which shows a LOD investigation was pending.  

   c.  A Disposition Form which shows on 3 December 1943 he was admitted to the 46th General Hospital for a wound to his upper left thigh which occurred when he was shot with his own pistol.  A LOD finding was pending.



   d.  A Medical Department Form 52 which shows on 19 January 1944 he was admitted to the 6th General Hospital.  The form stated on 27 October 1942, he underwent an amputation for gas gangrene.  He was scheduled for transfer to the Walter Reed General Hospital, Washington, DC, for further observation and treatment with a disposition date of 31 January 1944.

   e.  A Clinical Record Brief which shows he underwent a revision operation of his amputation stump on 25 February 1944 and a prosthesis was supplied on 15 April 1944.

   f.  FSM's statement, dated 19 March 1944, wherein he stated on 5 October 1943 while on duty near Buelino, Italy, he was in a house talking to some Italian girls.  He removed his gun from the inside of his shirt, where he usually kept it when he did not have a holster, to show the girls.  As he removed his gun it discharged and shot him in the left thigh.  He lost consciousness and did not remember anything further until he came to on an evacuation ship.  He had not been drinking prior to the accident and he did not feel he was being unduly careless or misconducting himself in any way at the time of his injury.

   g.  Progress Notes, dated 2 May 1944, which shows his injury had been changed from "not in the LOD due to his own misconduct" to "not in the LOD and not due to his own misconduct."

   h.  A Certificate of Disability for Discharge which stated he underwent a complete surgical amputation of his left thigh secondary to gas gangrene resulting for a bullet wound accidently incurred when his own pistol accidentally discharged on 5 October 1943.  He was found incapacitated by reason of loss of left lower extremity.  Satisfactory prosthesis had been applied and he was suitable for discharge to own charge.  He was discharged on 21 July 1944 by reason of disability.  He was issued an Honorable Discharge Certificate.

4.  The FSM died on 4 February 1999.

5.  The applicant provided a copy of a letter from the ARBA and the requested copies of the FSM's son and her birth certificates and their marriage and driver licenses.

6.  Army Regulation 600-8-22 (Military Award) states the Purple Heart is awarded for a wound sustained as a result of enemy 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.  Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action clearly do not justify award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence of record shows the FSM sustained a gun-shot wound to his left thigh when his own pistol accidentally discharged during his period of service during WWII.  He subsequently underwent a complete surgical amputation of his left thigh secondary to gas gangrene.  He was found incapacitated by reason of loss of left lower extremity and honorably discharged on 21 July 1944.  

2.  By regulation, to be awarded the Purple Heart it is necessary to established that a Soldier was wounded or injured in action.  There must be evidence confirming the wound or injury for which the award is being made was received as a direct result of, or was caused by enemy action, that the wound was treated by medical personnel, and a record of this treatment must have been made a matter of official record.

3.  There is no available evidence and the applicant provided none showing the FSM sustained an injury during WWII as a direct result of enemy action for award of the Purple Heart.  

4.  Notwithstanding the applicant's contentions and her sincerity, in the absence of evidence, there is no evidence upon which to base award of the Purple Heart. Therefore, the FSM is not entitled to award of the Purple Heart and it addition to his WD AGO Form 53.

5.  In making this determination, the applicant and all others concerned should know that this nation in no way diminishes the sacrifices made by the FSM's 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)                                         AR20140009777





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ABCMR Record of Proceedings (cont)                                         AR20140009777



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