RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            16 DECEMBER 2003  
	DOCKET NUMBER:   AR2003089977

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. John N. Slone		Member	
	Ms. Shirley L. Powell		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 applicant requests that his records be corrected to reflect award of the Purple Heart.

2.  The applicant states he was “wounded in the line of duty during WW II” by shrapnel from a mortar hit.  He states that he was taken to the medical headquarters for treatment.  

3.  In documents submitted by the applicant in support of his request, his daughter notes that attempts to locate people who could verify her father’s injury have not been successful.  She stated that the officer who told her father that he would be recommended for an award of the Purple Heart was killed in action a few days after her father was wounded.

4.  The applicant’s son-in-law states that the applicant “was involved during a battle near the Siegfried Line West Wall in 1945” and that he “received shrapnel in his face and neck when a shell exploded during an attack in the town of Wattsgoten or Shopphausen in Germany.”

5.  In addition to the statements made by the applicant’s family members, he also submits an extract from an organizational “daily sick report” indicating that he received medical treatment in February 1945 and that the condition for which treatment was received occurred “in line of duty.”  He also submits photographs in which he states that one photo shows his swollen face, while the other photo does not.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on 
16 November 1945.  The application submitted in this case is dated in 2002.  

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.  The applicant’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 the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.  

4.  The applicant entered active duty on 20 August 1942 and served in the European Theater of Operations between November 1944 and August 1945 and was assigned to the 116th Cavalry Reconnaissance Squadron.  His separation document indicates that he performed duties as a mortar gunner.

5.  A “daily sick report” notes that the applicant received medical treatment on 
21 February 1945 and that he was returned to duty.  The condition for which the applicant received treatment, which was not recorded on the sick report, does indicate that it was incurred “in line of duty.”

6.  In November 1945, after returning to the United States, the applicant underwent a physical examination.  The original copy of that examination does not indicate treatment for any wounds or injuries incurred as a result of hostile action and there is no mention of any scars or swelling on the applicant’s face or neck.

7.  The applicant was honorably discharged on 16 November 1945.  His War Department Adjutant General Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) does not reflect entitlement to the Purple Heart and item 34 (wounds received in action) reflects “NONE.”

8.  In the processing of this application, a search of the historical files maintained at the National Archives in College Park, Maryland, for the 116th Cavalry Reconnaissance Squadron were reviewed.  Those files failed to confirm that the applicant was wounded as a result of hostile action during World War II.

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for wounds 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.  The fact that an injury was determined to have occurred in the line of duty is not, in and of itself, a basis for award of the Purple Heart but merely a conclusion that the injury was not the result of misconduct.

DISCUSSION AND CONCLUSIONS:

1.  While the evidence clearly shows that the applicant did receive medical treatment in February 1945 and that the condition for which he received treatment was determined to have occurred in the line of duty, there is no evidence which confirms that the condition was incurred as a result of hostile action.  The applicant’s separation physical examination and separation document are both silent regarding the issue of the applicant having been wounded as a result of hostile action.

2.  In the absence of more compelling evidence, unfortunately there is insufficient evidence on which to base an award of the Purple Heart.

3.  Records show the applicant should have discovered the error or injustice now under consideration on 16 November 1945, the date of his separation from active duty.  However, the ABCMR was not established until 2 January 1947.  As a result, the time for the applicant to file a request for correction of any error or injustice expired on 1 January 1950.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse the failure to timely file.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__SAC __  __JNS__  ___SLP__  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 applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		___Samuel A. Crumpler_____
		        CHAIRPERSON

INDEX

CASE ID	AR2003089977	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031216	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	107.00	
2.		
3.		
4.		
5.		
6.