IN THE CASE OF:    

		BOARD DATE:  12 February 2015	  

		DOCKET NUMBER:  AR20140011651 


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 that her deceased father, a former service member (FSM), be awarded the Purple Heart.

2.  The applicant states her father was a prisoner of war during World War II and he was wounded.

3.  The applicant provides the FSM's:

* WD AGO Form 53-55 (Enlisted Record and Report of Separation, Honorable Discharge) with a date of separation of 20 October 1945
* WD AGO Form 100 (Separation Qualification Record)
* last page of what appears to be a physical examination
* Honorable Discharge Certificate
* 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's military records are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  The only records available to this Board are the records provided by the applicant.  These records are sufficient for the Board to conduct a fair and impartial review of this case.  The main record available to the Board was the WD AGO Form 53-55 provided by the applicant.

3.  His WD AGO Form 53-55 shows he was inducted into the Army of the United States on 9 November 1942 and entered active duty on 16 November 1942.  He served in the European Theater of Operations (ETO) from 29 March 1943 to 
4 May 1945.

4.  His WD AGO Form 100 contains an entry indicating he was a prisoner of war for about 17 months.

5.  On 20 October 1945, he was released from active duty.  He completed 
2 years, 11 months, and 5 days of active service that was characterized as honorable.  His WD AGO Form 53-55 shows in:

* Item 33 (Decorations and Citations) no entry for the Purple Heart
* Item 34 (Wounds Received in Action) the entry "None"

6.  The applicant provided what appears to be the last page of a physical examination.  The FSM's social security number is typed at the top of the page.  Item 44 (Remarks) of the document contains the entry "Retained foreign body, right shoulder, due to GSW (gunshot wound)."  This form was signed on 4 May 1990 by a medical doctor.

7.  Army Regulation 600-45 (Decorations), which governed the award of Army decorations until 23 August 1951, stated that for the purpose of considering an award of the Purple Heart, a “wound” was defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.  An “element” pertained to weather and the award of this decoration to personnel who were severely frostbitten while actually engaged in combat was authorized.


8.  Executive Order 11016, dated 25 April 1962, provided more latitude with respect to award of the Purple Heart to prisoners of war, as well as the authority to award the decoration to wounded Soldiers even in the absence of a formal declaration of war.

9.  Section 521a of the National Defense Authorization Act of 1996 authorized award of the Purple Heart to any former prisoner of war who was wounded before 25 April 1962 while held as a prisoner of war or while being taken captive, in the same manner as a former prisoner of war who was wounded on or after that date.  Section 521b specifically stated that award of the Purple Heart for prisoners of war under Section 521a shall be made in accordance with the standards in effect on the date of the enactment of this Act to persons wounded on or after 25 April 1962.

10.  Army Regulation 600-8-22 (Military Awards), in effect in 1996,  provided that the Purple Heart was awarded for a wound sustained 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, and the medical treatment must have been made a matter of official record.  A wound is defined as an injury to any part of the body from an outside force or agent sustained as a result of hostile action.  This regulation also provides that there is no time limitation on requests for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her father should be awarded the Purple Heart.

2.  The FSM's WD AGO 53-55 and WD AGO 100 show he served in the ETO from 29 March 1943 to 4 May 1945 and he was a prisoner of war for about 
17 months.

3.  Item 34 of the FSM's WD AGO 53-55 contains the entry "None."

4.  The form that appears to be a result of a physical examination contains the entry indicating the FSM retained a foreign body in his right shoulder due to a GSW.  However, the circumstances in which he received the GSW are not in the available records.  It is noted the date of signature of the examining physician was 4 May 1990, 44 years after the FSM's release from active duty.

5.  In view of the above, there is insufficient substantive evidence to show he was wounded as a result of hostile action in the face of an armed enemy or while he was a prisoner of war.  Therefore, there is insufficient substantive evidence to award the Purple Heart in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by her father in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      ____________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)                                         AR20140011651



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ABCMR Record of Proceedings (cont)                                         AR20140011651



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