IN THE CASE OF: BOARD DATE: 15 September 2009 DOCKET NUMBER: AR20090001887 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, in effect, that he be awarded the Purple Heart. 2. The applicant essentially states that he should be awarded the Purple Heart for hearing loss during combat, and that ear plugs were not issued to him and others in the artillery. He also states that he was under artillery barrages from the Germans, and that often the artillery came so close that shrapnel put holes in his field jacket and gas mask. Further, he contends, in effect, that his self-authored statement, along with the other evidence he provides, should give the evidence needed to make a decision on his request for the Purple Heart. 3. The applicant provides, in support of this application, a copy of his WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) and Honorable Discharge Certificate; an undated and unexpurgated citation for award of the Bronze Star Medal with first oak leaf cluster for the period 11 to 14 November 1944; two unauthenticated extracts of general orders, dated 28 October 1944 and 5 April 1945, for awards of the Bronze Star Medal for unspecified periods; information from the hospital admission cards created by the Office of the Surgeon General, Department of the Army, which essentially shows that he was hospitalized in May 1944 for tonsillitis; two letters, dated 17 April 2006 and 8 November 2006, from the National Personnel Records Center (NPRC) in St. Louis, MO; an informal information reply from the NPRC, dated 28 May 1998; a portion of an undated Department of Veterans Affairs (DVA) Rating Decision which shows that he was assigned a 30 percent disability rating for hearing loss, effective 8 February 2005; and a self-authored letter, dated 5 September 2005, addressed to the DVA. 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 majority of the applicant’s military records are not available for review. A fire destroyed approximately 18 million service members’ records at the NPRC in 1973. It is believed that the majority of the applicant's records were lost or destroyed in that fire. However, there are sufficient remaining documents available to conduct a fair and impartial review of this case. 3. The available records show that the applicant was inducted into the Army of the United States on 30 June 1943 and that he entered active service on 14 July 1943. These records also show that he served in the artillery. He departed the continental United States (CONUS) on 6 April 1944 for the European-African-Middle Eastern (EAME) Theater of Operations and arrived at his destination on 18 April 1944. He participated in the Normandy, Northern France, Rhineland, Ardennes-Alsace, and Central Europe campaigns during World War II. He departed the EAME Theater of Operations on 2 July 1945 and he arrived in CONUS on 10 July 1945. On 13 September 1945, he was honorably discharged. Item 33 (Decorations and Citations) of the applicant’s WD AGO Form 53-55 that was issued to him at the time shows that he was awarded the Army Good Conduct Medal, EAME Campaign Medal with five bronze service stars, and the Bronze Star Medal with first oak leaf cluster. 4. Item 33 of the applicant’s WD AGO Form 53-55 does not show that he was awarded the Purple Heart. Item 34 (Wounds Received in Action) of this same document does not contain any entries showing that he was wounded or injured as a result of hostile action. There is also no evidence in the available records which shows that he was ever wounded or injured as a result of hostile action. Additionally, information from the hospital admission cards created by the Office of the Surgeon General, Department of the Army only shows that he was hospitalized in May 1944 for tonsillitis. 5. The applicant provided an undated and unexpurgated citation which essentially awarded him the Bronze Star Medal for heroic service during the period 11 to 14 November 1944 when he voluntarily went to a forward position when radio communication was unclear, and during which time he was constantly exposed to intense enemy artillery and mortar fire and as well as roving enemy patrols. He also provided a portion of an undated DVA Rating Decision which shows that he was assigned a 30 percent disability rating for hearing loss effective 8 February 2005. 6. Additionally, the applicant provided a self-authored statement, dated 5 September 2005, which was addressed to the DVA, in which he essentially provided a partial summary of what he states he went through when the 4th Division landed on 6 June 1944 on Utah Beach and during the combat he experienced with this division throughout the war in Europe. 7. 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 been treated by medical personnel, and the medical treatment must have been made a matter of official records. This regulation also provides that each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act, international terrorist attack, or friendly fire; the wound or injury must have required treatment by medical personnel; and the records of medical treatment must have been made a matter of official Army records. 8. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that he should be awarded the Purple Heart. 2. The applicant's service during World War II, which included being awarded the Bronze Star Medal for heroic action from 11 to 14 November 1944, is truly commendable and is not in question. However, while the sincerity of the applicant's claim to entitlement to award of the Purple Heart is also not questioned, in order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 3. While the unexpurgated citation for the applicant's Bronze Star Medal clearly shows that he was constantly exposed to intense enemy artillery and mortar fire for 3 days, there is no record of the applicant being treated for any hearing loss immediately after this event or during the remainder of his military service. The fact that the DVA assigned him a 30 percent disability rating effective 8 February 2005 was noted; however, as the applicant was an artilleryman during his military service, the DVA Rating decision on his hearing loss in 2005 or 2006 is just as likely to have occurred as a result of him being an artilleryman exposed to outgoing artillery rounds during World War II as for the 3 days of artillery and mortar fire he was exposed to in November 1944. As a result, this document, which was prepared approximately 60 years after his military service, does not prove, by a preponderance of the evidence, that his hearing loss established at that late was directly and solely caused by hostile action. 4. Regrettably, absent evidence which conclusively shows that he was wounded or injured as a result of hostile action, that he was treated for wounds or injuries as a result of hostile action, and that this treatment was made a matter of official record, there is insufficient basis upon which to award the applicant the Purple Heart in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. 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. 2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during World War II. The applicant and all Americans should be justifiably proud of his service in arms. ___________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) AR20090001887 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090001887 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1