IN THE CASE OF:	

		BOARD DATE:	  20 August 20152

		DOCKET NUMBER:  AR20150001053 


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 that his injury sustained on 7 March 1945 was a "Battle Injury" instead of a "Non-Battle Injury (NBI)" and that he be awarded the Purple Heart.  He also indicated he desires to appear before the Board if warranted.

2.  He states that his gunshot injury or shrapnel wound to the ear occurred on the morning of 7 March 1945 while he was in the front lines collecting guns from homes.  In his sworn statement, he indicates the injury occurred in the early hours on 6 March 1945.  He adds the injury was field dressed and he was instructed to proceed.  He defers to his granddaughter who states:

   a.  The applicant encountered a battle injury to the ear due to a bullet/shrapnel while on a mission to collect guns from German homes.  She adds the wound was cleaned and field dressed by a medic who stated that the paperwork would be processed upon his return to camp.  The applicant was instructed to continue and complete the mission.
   
	b.  The applicant was involved in a separate incident a few days later, in which he was shot in the leg due to a pistol misfiring.  She adds the injury was extensive and the applicant was in the hospital for an extended period of time.  She maintains that after the applicant's release from the hospital, the company had completed their mission and the medic who bandaged the applicant was gone and there was no way to follow-up on the medical records/reports.  She admits that there is no record or documentation concerning the applicant’s ear injury.
3.  The applicant provides:

* WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge)
* Self-authored statement
* Granddaughter's statement
* Applicant's sworn statement
* Bronze Star Medal Certificate
* Personnel Records Check List
* Separation Documents
* Service Record Documents 
* Report of Physical Examination and Induction
* Morning Report Locator Cards
* Report of Investigation, 
* Medical and Dental Records
* Letter, Subject:  Action Against Enemy, Reports After/After Action Reports (AAR), dated 2 April 1945 with a List of Casualties
 
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 military records are not available to the ABCMR for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  This case is being considered based on the documents provided by the applicant and the National Archives and Records Administration (NARA).

3.  The applicant's WD AGO Form 53-55 shows he was inducted into the Army of the United States on 22 August 1942 and he entered active duty on 5 September 1942.  He served in the European theater of operations from 15 January 1945 to 10 January 1946 and he was honorably discharged on 27 January 1946.  Item 34 (Wounds Received in Action) of this form lists "None."

4.  In a Report of Investigation, dated 12 March 1945, the investigating officer (IO) stated the applicant was injured due to a gunshot wound (GSW) to the "lower third right thigh" on 6 March 1945.  The IO reported the applicant was snapping the trigger of a .25 caliber revolver while engaged in conversation with two other men.  He was apparently unaware of the round in the cylinder which fired, hitting him in the right leg.  The IO determined the wound was incurred in the line of duty and not due to the applicant's own misconduct.  His leg was bandaged and he was sent by jeep to the Aid Station.  

5.  An abbreviated clinical record, dated 14 March 1945, shows the applicant was admitted to the 41st Evacuation Hospital at “2000 hours on 6 March 45” for a GSW to the right thigh from a .25 caliber pistol.

6.  Appendix II of the AAR, dated 2 April 1945, provided a list of assigned personnel and the type of casualty by date.  This report shows on 7 March 1945, the applicant was listed as an "NBI."

7.  On 4 April 1945, the progress notes stated that the applicant's leg was in good condition and he would be returned to duty.

8.  There is no evidence in the available records which shows he sustained or was treated for wounds incurred as a result of hostile action.

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is 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 by a medical officer, and the medical treatment must have been made a matter of official record.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 
2-9 contains guidance on the burden of proof.  It states, in pertinent part, the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Paragraph 2-11 contains guidance on ABCMR hearings and it states that applicants do not have a right to a hearing before the ABCMR.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was admitted to the hospital on 
6 March 1945, due to a self-inflicted GSW.  It appears that he remained in the hospital until on or about 14 April 1945, when he was cleared to return to duty. 

2.  There are no medical records available which show he was wounded or treated for wounds as a result of hostile action during his service in World War II or specifically on 7 March 1945.  In the absence of medical records supporting his contention, there is insufficient evidence to correct his records to show his injury occurred in battle.  Likewise, there is insufficient evidence to correct his records to show award of 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:

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)                                         AR20150001053



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ABCMR Record of Proceedings (cont)                                         AR20150001053



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