RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           5 February 2004                   
	DOCKET NUMBER:   AR2003089883

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

	Mr. Carl W. S. Chun		Director	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Karen A. Heinz		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The former service member (FSM) is deceased.  The applicant is the FSM’s daughter.  The applicant requests on behalf of the FSM that his record be corrected to show award of the Purple Heart (PH). 

2.  The applicant states the FSM's medical record contains a document that shows he received multiple puncture wounds to the face when a grenade accidentally exploded in a truck.  The medical document is annotated with the phrase “Entitled to PH.”  The applicant states that an administrative oversight may have been the reason for the PH not being shown on the FSM's record.

3.  The applicant provides in support of her request:  a copy of her birth certificate to show that she is the FSM's next of kin; several of the FSM's medical records; the FSM's Certificate in Lieu of Lost or Destroyed Discharge-Honorable Discharge; and the FSM's death certificate, which shows that he died on 21 November 1993.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 8 May 1946.  The application submitted in this case is dated 1 April 2003.  

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  On 15 May 1944, the FSM was inducted into the Army of the United States.  He served in military occupational specialty (MOS) 745, Rifleman.  He served in the European Theater of Operations (ETO) from 30 December 1944-1 March 1946.  

4.  The medical records provided by the applicant appear to be authentic and substantiate that the FSM sustained an injury to his face as a result of an accidental explosion.  The injury was determined to be in the line of duty.  However, the injury was not the result of actions by a hostile force.  The actual diagnosis on the 7 April 1945 record states, "N.B.I. [non-battle injury] Frag. [fragmentation] Hand Grenade Mult [multiple] Pun W [puncture wounds] face SL [side, left] Grenade Exploded Accidently (sic) In Truck."

5.  Hospital Admissions Cards created by the Department of the Army, Office of The Surgeon General, in 1945 show that the FSM was treated on 18 May 1945 for a "wound to his toes, generally, lacerated with no nerve or artery involvement."  The wound was caused by a knife and determined to be a non-battle injury.  Hospital Admissions Cards also show that on 25 December 1945, the FSM was treated for acute tonsillitis.  There are no hospital cards available to corroborate the grenade injury to the face.

6.  The FSM was honorably separated on 8 May 1946.  His Honorable Discharge Certificate shows he was awarded the Bronze Star Medal, Good Conduct Medal, European-African-Middle Eastern Campaign Medal with two bronze service stars, World War II (WWII) Victory Medal, the Combat Infantryman Badge, and the Honorable Service Lapel Button, WWII.  It does not show the PH as an authorized award, nor does it reflect in Item 34 that he was ever wounded in action.  

7.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart (PH) is awarded for a wound sustained as a result of hostile action. Substantiating evidence must be provided to verify that:  (1) the wound was the result of hostile action; (2) the wound required medical treatment; and (3) the medical treatment was made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence corroborates the applicant's contention that the former FSM received wounds to his face.  However, he was injured due to an accidental explosion, a non-battle injury.  There is no evidence available to indicate that he was ever wounded as a result of hostile action.

2.  To be awarded the PH, the applicant would have to show the FSM was wounded and that:  (1) the wound was the result of hostile action; (2) the wound required medical treatment; and (3) the medical treatment was made a matter of official record.  There is no such substantiating proof in the FSM's record, nor has the applicant provided any that show the FSM was ever wounded as a result of hostile action.  Therefore, no basis has been established for award of the PH.

3.  Records show the FSM should have discovered the error or injustice now under consideration on 8 May 1946, the date of his separation from active duty.  However, the ABCMR was not established until 2 January 1947.  Therefore, the time for the applicant to file a request for correction of any error or injustice expired on 1 January 1950.  

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__fne___  __jpi___  __kah___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the former service member's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

			Fred N. Eichorn
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003089883	
SUFFIX		
RECON		
DATE BOARDED	20040205	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	107.0015	
2.		
3.		
4.		
5.		
6.