MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:                              
	DOCKET NUMBER:   AC98-10865A
				   AR1998007863

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. W. E. Schnupp		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Shirley L. Powell		Member	
	Ms. Kathleen A. Newman		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That he be awarded the Purple Heart.

APPLICANT STATES:  He was injured crossing the Rhine River under fire in 1944.  He was treated at the battalion aid station but never awarded the Purple Heart.

In support of his request, he has provided a statement dated 11 March 1946, from a physician in California who treated him for a back injury (allegedly the result of his injury during World War II), an extract from a hearing before the VA on 30 November 1995 at which he sought service connection for a back injury, a statement from his battery commander, who was with him at the time of his injury during World War II and a statement prepared by himself setting forth the circumstance of his injury.

COUNSEL CONTENDS:  (Application was signed on behalf of the applicant by his legal representative).

EVIDENCE OF RECORD:  The applicant's military records were lost or destroyed in the 1973 fire at the National Personnel Records Center.  Information herein is based upon documentation submitted by the applicant.

In a personal account of the circumstances of his injury, dated 4 November 1991, the applicant says that while crossing the Rhine River at the town of Weasel, Germany, the pontoon bridge he was on came under heavy enemy fire.  Thinking the pontoon ahead of him had been hit, he jumped from the jeep but caught his foot causing him to land on the bridge on his backside.  Realizing that the pontoon had not been hit, he immediately jumped back into the jeep.  The next day, he reported to the battalion aid station and was treated for a back injury.  Years later at a battalion reunion, he met his former commander, who was with him at the time he was injured.  His commander agreed to put in writing verification of the injury.

The commander’s account of the applicant’s injury is similar to that provided by the applicant himself.  He states that the applicant was driving the jeep.  When they were midway across the bridge a shell landed at the far end of the bridge. The applicant “jumped from the jeep and landed on the bridge”.  He then got back into the jeep and continued crossing the river.  The commander does not indicate whether the shelling caused him to also exit the jeep.

The applicant was examined by a private physician in El Monte, California on    11 March 1946.  That physician indicated that the applicant was under his care for a back injury, which, he says, the applicant told him he received in service in the US Army in May 1945.

The applicant appeared before a VA hearing officer on 30 November 1995 for the purpose of determining his entitlement to service connection for residuals of a low back injury.  During the hearing the applicant reiterated that his back injury was incurred while crossing the Rhine River during World War II.

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.  When contemplating award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury. The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification of the award.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  Unfortunately, due to the passage of time, the applicant’s records have been lost or destroyed and the evidence now provided does not support that his injury was the direct result of hostile action.

2.  The Board does not question that he suffered a back injury during his World War II service.  However, the letter from the physician who treated him in March 1946 does not substantiate that the injury was the result of combat action; rather, it is based solely on the statement of the applicant.  Similarly, the extract of his VA hearing is also based upon his own recollection and does not provided any independent confirmation of the events relating to his injury.

3.  While both the applicant’s and his former commander’s statements are similar, neither statement clearly establishes that they were in direct contact with the enemy at the time the applicant sustained his injury.  It appears, in fact, that his injury was incurred as a result of the applicant reacting to an explosion that was not immediately threatening to him.  It also appears that his commander       (who indicates that the explosion occurred at the other end of the bridge and not the next pontoon as the applicant says) did not believe the enemy fire was so threatening as to cause him to also abandon the jeep to seek cover.

4.  The Purple Heart, while clearly an individual decoration, differs from other decorations in that an individual is not “recommended” for the award; rather he or she is entitled to it upon meeting certain criteria.  Given that the circumstances of his injury are as he and his commander describe them, his injury does not appear to satisfy the letter or the spirit of the criteria, for award of the Purple Heart.
5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_RVO____  _SLP___  _KAN___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-10865A/AR 1998007863	
SUFFIX		
RECON	NO	
DATE BOARDED	19990104	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19460200	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES        1.	107.0015.0000	
2.		
3.		
4.		
5.		
6.