RECORD OF PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           JANUARY 13, 2004                   
	DOCKET NUMBER:   AR2003091149

	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	
	Mr. Jessie B. Strickland		Analyst	

  The following members, a quorum, were present:

	Ms. Lana E. McGlynn		Chairperson	
	Mr. Patrick H. McGann		Member	
	Mr. Roger W. Able		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 he be awarded the Purple Heart for wounds/injuries received in combat during World War II (WWII).

2.  The applicant states, in effect, that his report of separation (WD AGO Form 53-55) indicates that he received no wounds in action; however, he was wounded and received medical treatment for his wounds.  

3.  The applicant provides a copy of his report of separation and a letter from the medic who treated him at the time.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error, which occurred on 18 September 1947.  The application submitted in this case is dated 11 May 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.  The applicant's military are not available to the Board for review.  A fire destroyed 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.  He was born on 24 February 1919 and enlisted on 8 July 1943.  He was transferred to the European Theater of Operations (ETO) on 3 November 1944.

5.  On 28 February 1945, the applicant was treated for complaints of pain in the left scrotum area.  He was evacuated and admitted to the hospital for further treatment.  He was subsequently evacuated to several other hospitals for treatment of Prostatitis, Dermatophytosis, Epididymis and Varicocele.  

6.  Physicians' notes dated 10 October 1944, indicate that since 15 June 1944, without the history of trauma, the patient (applicant) had a little weakness of the right leg and some numbness in the lateral aspect of the calf and the dorsal of the foot.  The diagnosis made at that time was "Neuritis common, perineal, right, mild, cause undetermined.  Patient should be put on light duty for a couple of weeks and then observed." 

7.  The applicant reenlisted on 11 April 1946 and was returned to the United States on 22 April 1946.  He remained there until 15 August 1946, when he returned to the ETO.  He continued to serve in the ETO until his departure on 27 July 1947.

8.  On 18 September 1947, he was honorably discharged in the rank of Technical Sergeant, after having served 4 years, 2 months and 11 days of total active service.  He was awarded the Combat Infantryman Badge (CIB), the World War II Victory Medal, and the Army of Occupation Medal (Germany).  His WD AGO Form 53-55 indicates in block 34, that he had no wounds received in action.

9.  The National Personnel Records Center in St. Louis, Missouri subsequently authorized him to be issued the Bronze Star Medal (BSM) as a conversion award based on his award of the CIB, and the Army Good Conduct Medal (AGCM).  However, there is no evidence in the available records to show that they were ever added to his WD AGO Form 53-55.

10.  The supporting letter submitted by the applicant from the unit medic, who is now a physician, is a letter addressed to the applicant's daughter and indicates that he had advised the applicant on two occasions that he was entitled to awards of the Purple Heart.  However, the applicant declined on both occasions. He cited the period of 1 January to 28 February 1945.  The author does not describe the extent of injuries or the dates of the injuries.

11.  Army Regulation 600-8-22 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 a result of hostile action, that the wound must have required treatment by a medical officer, and that the medical treatment was made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant has provided a statement from the medic who treated him some 58 years ago, there is insufficient evidence to corroborate the injuries he received, the date the injuries were sustained and the nature of how they were inflicted.

2.  The evidence does establish that he was in fact hospitalized on 28 February 1945; however, the available medical records do not establish that his injuries were combat related injuries that were the result of hostile action.
3.  Accordingly, there is insufficient evidence available for the Board to determine that he is entitled to an award of the Purple Heart.

4.  However, evidence shows that the applicant’s records contain administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant's records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

5.  Records show the applicant should have discovered the error or injustice now under consideration on 18 September 1947; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 17 September 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 failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

phm_____  lem_____  rwa_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  

2.  The Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show his awards of the BSM and AGCM.

		___Lana E. McGlynn___
		        CHAIRPERSON

INDEX

CASE ID	AR2003091149	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040113	
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.  107.0015	61/PH	
2.		
3.		
4.		
5.		
6.