BOARD DATE: 10 August 2017 DOCKET NUMBER: AR20160002851 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 BOARD DATE: 10 August 2017 DOCKET NUMBER: AR20160002851 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. BOARD DATE: 10 August 2017 DOCKET NUMBER: AR20160002851 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, correction of his records to show award of the: * Silver Star * Purple Heart 2. The applicant states: a.  He was involved in five major battles which many were not recorded on his discharge documentation and he earned the requested decorations. b.  On 29-30 July 1944, he drove into a German camp about late evening. His commander, Colonel C___, of Headquarters Company, 2nd Battery, 41st Armored Infantry Regiment, was setting up an area where many of the German troops were. c.  He and two other Soldiers, T____ and G____, pulled two machine guns from their halftrack while on a road bank. The German soldiers came from both sides and one German soldier got about 30 feet from his gun. The German soldier threw a grenade at both T____ and G____; however, T____ shot him and G____ was shot through his shoulder. The explosion blew him (applicant) back about 30 feet and he incurred a concussion and scratches on his arms. d.  Another incident occurred at Elbeuf when a German 88 came across the Seine River. The German 88 hit his halftrack and got several of his men, including a recruit, J____ B___, who ended up dying in his arms. e.  He used his halftrack to transport G____ and T____ for treatment. His action saved their lives. f.  He was at Death Night on the night of 29-30 July 1944 at Saint Denis LeGast, where 150 members of the Headquarters and Headquarters Company, 2nd Battalion, 41st Infantry Regiment, killed 139 Germans on the edge of their defense sector. 3. The applicant provides: * Congressional correspondence * Two self-authored statements * reconstructed records from the National Personnel Records Center * Honorable Discharge Certificate * extracts from "Breakout At Normandy" * undated letter from H____ B____ M____ * Department of Veterans Affairs identification card * Arkansas driver's license * WD AGO Form 53-55 (Enlisted Record and Report of Separation) 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 complete military and medical 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 the applicant's records were lost or destroyed in that fire. The case is being considered using reconstructed records and the evidence provided by the applicant. 3. The applicant was inducted into the Army of the United States on 1 December 1941. 4. On 27 September 1945, he was honorably discharged. His WD AGO Form 53-55 shows in: * item 31 (Military Qualification and Date) – Combat Infantryman Badge * item 32 (Battles and Campaigns) – * Sicily * Normandy * Southern France * Rhineland * item 33 (Decorations and Citations) – * European-African-Middle Eastern Campaign Medal with four bronze service stars * Army Good Conduct Medal * American Defense Medal * item 34 (Wounds Received in Action) – None * item 36 (Service Outside Continental United States and Return) – he arrived in the European-African-Middle Eastern theater of operations on 24 December 1942 and departed on 11 November 1944 5. He provided: a.  extracts from a book by Mark Brando, "Breakout at Normandy," and photographs of Soldiers in which the author describes an incident in which the applicant and other Soldiers were engaged with and injured by means used by the enemy, b.  a letter from H___ B___ M___ which provided the different outcomes of the Soldiers involved with the applicant, and c.  copies of his Department of Veterans Affairs identification card and Arkansas driver's license. 6. His available records are void of and he failed to provide medical evidence showing he was injured as a result of hostile action and was hospitalized for treatment of his injury. 7. His available records are also void of and he failed to provide any evidence he was awarded the Silver Star. REFERENCES: 1. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. a.  The Purple Heart is awarded for a wound sustained in action against an enemy or 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 by medical personnel, and the medical treatment must have been made a matter of official record. (1)  A wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions listed above. A physical lesion is not required. However, the wound for which the award is made must have required treatment, not merely examination, by a medical officer. Additionally, treatment of the wound will be documented in the service member’s medical and/or health record. Award of the Purple Heart may be made for wounds treated by a medical professional other than a medical officer provided a medical officer includes a statement in the service member’s medical record that the extent of the wounds was such that they would have required treatment by a medical officer if one had been available to treat them. (2)  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows: * injury caused by enemy bullet, shrapnel, or other projectile created by enemy action * injury caused by enemy-placed trap or mine * injury caused by enemy-released chemical, biological, or nuclear agent * injury caused by vehicle or aircraft accident resulting from enemy fire * concussion injuries caused as a result of enemy-generated explosions * mild traumatic brain injury or concussion severe enough to cause either loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the concussive incident (3)  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: * frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951) * trench foot or immersion foot * heat stroke * food poisoning not caused by enemy agents * chemical, biological, or nuclear agents not released by the enemy * battle fatigue * disease not directly caused by enemy agents * accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action * self-inflicted wounds, except when in the heat of battle and not involving gross negligence * post-traumatic stress disorder * airborne (for example, parachute/jump) injuries not caused by enemy action * hearing loss and tinnitus (for example, ringing in the ears) * mild traumatic brain injury or concussions that do not either result in loss of consciousness or restriction from full duty for a period greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function * abrasions and lacerations (unless of a severity to be incapacitating) * bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer) * soft tissue injuries (for example, ligament, tendon, or muscle strains, sprains, and so forth) * first degree burns b.  The Silver Star is awarded for gallantry in action against the enemy. The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. 2. 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. 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. 3. Title 10 of the U.S. Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion. Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration. Based upon such review, the Secretary shall determine the merits of approving the award. 4. The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to: Commander, U.S. Army Human Resources Command, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122. The unit must be clearly identified, along with the period of assignment and the recommended award. A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638. Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents. Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request. The burden and costs for researching and assembling supporting documentation rest with the applicant. DISCUSSION: 1. Award of the Purple Heart requires evidence to verify: * the wound was the result of hostile action * treatment of the wound by medical personnel * documentation of the wound in official records 2. His available records are void of and he failed to provide medical evidence showing he was injured as a result of hostile action and was hospitalized for treatment of his injury. 3. While the available evidence is insufficient for awarding the applicant the Silver Star, this in no way affects the applicant’s right to pursue his claim for the Silver Star by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002851 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002851 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2