IN THE CASE OF: BOARD DATE: 15 October 2008 DOCKET NUMBER: AR20080012418 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 award of the Purple Heart. 2. The applicant states that he received an injury (broken nose) during World War II and that he was offered the Purple Heart but he refused out of guilt and in honor of the men killed in his battery. 3. The applicant provides, in support of his application, a copy of his WD AGO Form 53-55 (Enlisted Record and Report of Separation); a Report of Physical Examination and Induction; a Separation Qualification Record; a WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty or Retirement); dental service records; an excerpt on the 550th Antiaircraft Artillery Gun Battalion; a letter, dated 27 June 1994; and two eyewitness statements from fellow Soldiers at the time in question. 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 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. 3. The applicant was inducted on 19 January 1943 and entered active duty on 26 January 1943. He served in the European Theater of Operations from 2 November 1943 through 28 May 1946 and was honorably discharged on 11 June 1946. 4. The applicant’s WD AGO Form 53-55 does not show the Purple Heart as an authorized award. Item 34 (Wounds Received in Action) on his WD AGO Form 53-55 shows the entry, “none.” 5. There is no evidence in the available records that shows the applicant was awarded the Purple Heart or was wounded as a result of hostile action during World War II. 6. Item 11 (List all significant diseases, wounds, and injuries) on the applicant’s WD AGO Form 38, dated 10 June 1946, shows the entry, “(A) BAD RIGHT EAR-NO TREATMENT.” Item 37 (Ear, nose, throat, abnormalities) on this form shows the entry, “deviated septum right EPTS [existed prior to service] 11a noted no abnormalities noted.” 7. In support of his claim, the applicant provided two eyewitness statements from fellow Soldiers at the time in question. One Soldier recalled that the applicant got hurt (nose and face bleeding) on his truck during a “straffing” by a German plane and that he should have been given the Purple Heart. One Soldier recalled an accident the applicant had while on duty in France during World War II, when he smashed his nose on the tent pole sticking out from the truck he was unloading when a German plane “buzzed” them. 8. 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 medical personnel, and the medical treatment must have been made a matter of official record. DISCUSSION AND CONCLUSIONS: There is no evidence in the available records that show the applicant was awarded the Purple Heart or was wounded as a result of hostile action during World War II. The 10 June 1946 WD AGO Form 38 provided by the applicant states that his right deviated septum existed prior to service and no wounds or injuries were noted in item 11. In the absence of orders or other evidence of record showing that the applicant was injured or treated for wounds as a result of hostile action, the eyewitness statements provided by the applicant are not sufficient as a basis for award of the Purple Heart. Regrettably, there is insufficient evidence on which to base award of the Purple Heart in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __XX______ ___XX_____ ___XX_____ 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. ________XXXX______________ 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) AR20080012418 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080012418 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1