IN THE CASE OF: BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150010905 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150010905 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. IN THE CASE OF: BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150010905 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, the granddaughter of a deceased former service member (FSM), requests posthumous award of the Purple Heart for the FSM. 2. She states, in effect, the FSM should be awarded the Purple Heart for an injury sustained when his unit was gassed while participating in direct combat in France. The FSM suffered from lifelong lung problems as a result and died at age 50 of bronchial pneumonia. 3. She provides: * FSM’s Data Card * three supply requisitions * two letters of recommendation * Camp Devens Roster, Company K, 104th Infantry * United States Army: 26th Division History, unknown origin * unsigned, history of events for Company K, 104th Infantry, dated 17 April 1918 * General Order Number 737-A, 32nd Army Corps, dated 26 April 1918 * memorandum, Wear of the War Chevron, dated 1 May 1918, with roster * memorandum, Missing Service Records, dated 9 March 1919 * Report of the Commission on Massachusetts’ Part in the World War History, dated 1931 * National Personnel Records Center (NPRC) application for replacement awards * photos and map representing the Belgium and Franco-German Frontier 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 FSM's complete military records are not available for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center (NPRC) in 1973. It is believed his records were lost or destroyed in that fire. This case is being considered using the documents provided by the applicant and a reconstructed record provided by NPRC. 3. The FSM’s reconstructed record contains a Veterans Administration Adjudication Form 545, dated 18 November 1948. This form shows: * he enlisted on 5 August 1917 * he served with Company K, 104th Infantry * he served in France from 17 October 1917 to 27 March 1919 * he received no wounds in service * he was honorably discharged on 28 April 1919 4. The applicant provides: * military orders which show the FSM was assigned to Company K, 104th Infantry * numerous photos of the FSM and his unit * General Orders citing the 104th Infantry Regiment for a great fighting spirit and self-sacrifice during action on 10, 12 and 13 April 1918, suffering from very heavy bombardments and attack by strong German forces * authorization for the FSM’s unit to wear the War Service Chevron (his name is listed on the personnel roster) * three requests dated January 1918 for gas mask supplies originating from the FSM’s unit * memorandum dated 9 March 1919 showing the FSM’s service records were missing, * hand written history of the events during the Apremait Battle (France) * historical references which show the 104th Infantry’s reported gas casualties totaling 250 in April 1918 and 109 in July 1918 * character references from his employer and a distant relative stating the applicant suffered physical problems related to his gas exposure during the war and recommended the posthumous award of the Purple Heart * FSM’s death certificate listing cause of death as bronchial pneumonia * an email response with attached data card from the MA National Guard Museum & Archives stating ?I have his data card. Under wounds it says none. We know virtually every Soldier in the 26th Division inhaled gas including [the FSM] assigned to [Company] K, 104th Infantry. The Army will accept this card if it had contained the word gassed for award of the Purple Heart Medal.? REFERENCES: 1. The Purple Heart was established by General George Washington at Newburgh, New York, on 7 August 1782, during the Revolutionary War. In 1932, it was reestablished by the President of the United States per War Department General Orders Number 3. It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action. 2. Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained as a result of hostile action. Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record. The Purple Heart may be awarded for an injury caused by an enemy-released chemical, biological, or nuclear agent. When contemplating awarding the PH, commanders or designated approval authorities acting on behalf of the Secretary of the Army must take into consideration the degree to which the enemy caused the injury. The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but it is not the sole justification for the award. DISCUSSION: 1. The applicant requests posthumous award of the Purple Heart for the FSM. The applicant contends the FSM was gassed during World War I while fighting in France and as a result, he suffered with chronic lung problems and died of bronchial pneumonia. 2. The evidence clearly shows the FSM was assigned to a unit involved in armed conflict during World War I and that his unit reported hundreds of personnel losses due to gas exposure. 3. Neither the sincerity of the character witnesses nor the FSM’s medical condition are in question; however, the applicant has not met the burden of proof for award of the Purple Heart. Regulatory guidance states the Purple Heart may be awarded for an injury caused by an enemy-released chemical, biological, or nuclear agent. Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record. 4. There is insufficient evidence showing he was injured by a gas attack, his injury required medical treatment, and the treatment was made a matter of official record at the time of injury. There is no medical evidence showing his chronic lung condition was due to his exposure to a gas agent. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20060004756 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010905 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2