IN THE CASE OF: BOARD DATE: 17 July 2012 DOCKET NUMBER: AR20120001514 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 correction of his records to show award of the Purple Heart. He also requests reconsideration of his earlier appeal to change his discharge document to show he had not been reduced in rank. 2. The applicant states that: a. on the 7th day of the invasion in “1941,” he was blown off his halftrack in Normandy. The medic took shrapnel from his back and patched him up. The medic wanted to send him back to England but he refused because he wanted to stay with his unit. He is now 92 years old and would like to have the award before he dies. b. after he was discharged he went to the Department of Veterans Affairs (VA) hospital where they fixed him up with a brace. He had to have a flat board to sleep at night. Her has been wearing a brace ever since. He walks using a cane or walker. 3. The applicant provides copies of his: * DD Form 149 (Application for Correction of Military Records) dated 10 December 2009 * Honorable Discharge Certificate * WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge) * general orders showing award of the American Defense Service Medal 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 earlier request to have his discharge document corrected to show his pay grade as Technician 4, not Technician 5, was considered by the ABCMR in docket number AR20060011369 on 13 March 2007. Army Regulation 15-185 sets forth procedures for processing requests for correction of military records. Paragraph 2-15b governs requests for reconsideration. This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within 1 year of the ABCMR's original decision and it has not previously been reconsidered. This request for reconsideration was received more than 1 year after the ABCMR’s original decision. The matter will not be further discussed in these proceedings. 3. The applicant's complete military records are not available for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973. It is believed that the FSM's records were lost or destroyed in that fire. However, there are sufficient documents available to conduct a fair and impartial review of this case. 4. The applicant's WD AGO Form 53-55 shows: a. he was inducted into the Army of the United States on 17 October 1941 and entered active duty on that date. b. he served as a truck driver. c. he participated in the Normandy, Northern France, Rhineland, and Central Europe campaigns; d. he was awarded the Distinguished Unit Badge, Army Good Conduct Medal, American Defense Service Medal, European-African-Middle-Eastern Campaign Medal with bronze service Arrowhead, World War II Victory Medal, and he was issued the Army Lapel Button; e. he did not receive any wounds in action; and f. he was honorably discharged on 13 October 1945 at Fort Devens, MA. 5. A medical examination, dated 12 October 1945, shows he stated he had "Pain in back-irregular –also in right knee." The examining official annotated that in his opinion, the wound or injury was incurred in line of duty. 6. Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against an enemy or 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: 1. There are no available general orders showing the FSM was awarded the Purple Heart. The available documentation shows that while he may have been injured in the line of duty, there is no evidence the wound was sustained while in action against an enemy or as a result of hostile action. Furthermore, there is no medical evidence showing he received treatment for any wounds received as a direct result of enemy action. 2. Regrettably, in view of the above the applicant's request should be denied. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X____ ___X____ ___X___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ X _______ ___ 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) AR20110007895 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120001514 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1