ࡱ> XZW#` ?%bjbj5G5G KQW-W-j       ~ $!!!8!!&"("(""""""h&j&j&j&j&j&j&$'h*0& """""&  ""&###" " "h&#"h&##  #"" pKAv!"(##&0&#7*#j7*#7* #$""#"""""&&#"""&"""" &&( 4\ "       RECORD OF PROCEEDINGS IN THE CASE OF: mergerec  mergerec  BOARD DATE: 29 January 2004 DOCKET NUMBER: AR2003089225mergerec  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. ChunDirectorMr. Joseph A. AdrianceAnalyst The following members, a quorum, were present: Mr. Raymond V. OConnorChairpersonMr. Walter T. MorrisonMemberMs. Karen Y. FletcherMember 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, in effect, that his record be corrected to show he was wounded in action. 2. The applicant states, in effect, that Item 34 (Wounds Received In Action) of his separation document (WD AGO Form 53-55) should be corrected to show he received wounds to the right side of his leg, hip, feet, and head as a result of an ammunition explosion caused by an enemy booby trap set by German soldiers in 1945. 3. The applicant indicates that Department of Veterans Affairs (VA) records support his application; however, none of the VA records referred to were included with the application received by the Board. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an error of omission of information from his separation document that he should have discovered when he received the WD AGO Form 53-55 on 23 December 1945. The application submitted in this case is dated 2 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 applicants failure to timely file. 3. The applicants 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 applicants records were lost or destroyed in that fire. This case is being considered using a reconstructed record that primarily consists of his 23 December 1945 WD AGO Form 53-55. 4. The WD AGO Form 53-55 issued to the applicant on the date of his discharge shows that he was inducted into the Army of the United States and entered active duty on 17 December 1942. It further confirms that he continuously served on active duty until being honorably separated 23 December 1945. 5. The applicants WD AGO Form 53-55 also shows that he served in the European Theater of Operations (ETO) from 7 January 1944 through sometime in December 1945, and that he was assigned to the 600th Ordnance Ammunition Company. It further indicates that he participated in the Normandy, Northern France, Rhineland, and Central Europe campaigns of World War II. 6. The applicants separation document also confirms that he earned the following awards during his tenure on active duty: Army Good Conduct Medal; World War II Victory Medal; American Theater Campaign Ribbon; European-African-Middle Eastern Campaign Ribbon; and Sharpshooter Qualification Badge with Carbine Bar. Item 34 (Wounds Received in Action) of this document contains the entry None. 7. A request for information from hospital admission cards created by the Office of The Surgeon General (OTSG) of the Army for the period 1942 through 1945 produced no results for the applicant. 8. Army Regulation 600-8-22 (Military Awards) prescribes the Armys awards policy. Paragraph 2-8 contains guidance on awarding the Purple Heart. It states, in pertinent part, that the PH is authorized to members who are wounded in action. It further defines a wound as an injury to any part of the body from an outside force or agent sustained in action. It also stipulates that the wound for which a PH is being awarded must have required treatment by a medical officer, and the records of medical treatment for the wound or injury for which the PH is being awarded must have been made a matter of official record. DISCUSSION AND CONCLUSIONS: 1. The evidence of record and independent evidence provided by the applicant fails to support his claim of entitlement to the PH. By regulation, in order to support award of the PH, there must be evidence showing that the soldier was wounded or injured in action, that the wound for which the award is being made required treatment by military medical personnel and this treatment must have been made a matter of official record. 2. The evidence of record provides no indication that the applicant was wounded or injured as a direct result of or that was caused by enemy action, or that he was awarded the PH. Further, there are no medical treatment records on file that show he was ever treated for a wound or injury received in action. 3. Absent any evidence of record or independent evidence to corroborate the applicants claim of entitlement to the PH, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case. As a result, there is an insufficient evidentiary basis upon which to support granting the requested relief. 4. The records show the applicant should have discovered the error or injustice now under consideration on 23 December 1945, the date of his separation from active duty. Therefore, based on the date the Board was established, 2 January 1947, 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 failure to file in this case. BOARD VOTE: ________ ________ ________ GRANT RELIEF ________ ________ ________ GRANT FORMAL HEARING __WTM__ __KF__ __RO ___ 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. Raymond V. OConnor CHAIRPERSON INDEX CASE IDAR2003089225SUFFIXRECONDATE BOARDED2003/12/29TYPE OF DISCHARGEHDDATE OF DISCHARGE1945/12/23DISCHARGE AUTHORITYAR 615-365DISCHARGE REASONDemobilizationBOARD DECISIONDENYREVIEW AUTHORITYISSUES 1. 61107.00152.3.4.5.6.   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