ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


           IN THE CASE OF:

		BOARD DATE:  17 September 2019

		DOCKET NUMBER:  AR20170004053


APPLICANT REQUESTS:  a record to reflect that her father, a deceased former service member (FSM), received one or more awards of the Purple Heart.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552)
* Living Will Declaration, dated 4 February 2005
* National Achieves Form 13038 (Certification of Military Service), National Personnel Records Center, dated 17 April 2006
* Letter, Department of Veterans Affairs (VA), dated 23 December 2015
* Certificate of Death, New York State Department of Health, dated 14 March 2016
* Letter, National Personnel Records Center (NPRC), dated 30 December 2016
* Letter, Applicant, dated 5 July 2017
* Picture containing Purple Heart Award
* World War II Honoree, WWII memorial.com

FACTS:

1.  The applicant did not file within the 3 year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant's father's complete 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 applicant's records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.

3.  The applicant (FSM's daughter) states:

* she has possession of her father's Purple Heart Medal
* her father was 100 percent disabled (deaf) due to the injuries incurred during WWII
* she is seeking help to give her father a rightful place in the National Purple Heart Hall of Fame
* her father's injuries were documented and his healthcare was provided mainly through the VA

4.  The applicant provided a copy of her father's Certification of Military Service from the NPRC showing her father served during the period 7 August 1943 through 1 March 1946, with an honorable discharge.  The Certification of Military Service is issued in the absence of a copy of the actual Report of Separation.

5.  The applicant also provided a picture of her father's shadow box which displays his Purple Heart Medal.  Additionally, she provided information from the World War II registry, an unofficial website showing her father was awarded two Purple Heart Medals.

6.  Department of Veterans Affairs provided the following documents:

	a. War Department Adjutant General's Officer (WD AGO) Form No. 22 (Enlistment Record – Army of the Unites States) showing he enlisted in the Reserve Corps on 24 May 1943.

	b. Form 52a (Normal Index Card - Medical Department) shows he was assigned to Company F, 389th Infantry Regiment, dated 24 July 1945.  He was admitted to Ward 10, 230th General Hospital, Oahu, HI, for food poisoning.

	c.  Form 52b (Emergency Medical Tag – Medical Department) shows he was assigned to Company F, 389th Infantry Regiment, 98th Division, dated 19 December 1945.  He had a diagnosis of an abscess.

	d.  WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty or Retirement), dated 17 February 1946, shows diagnosis of chronic otitis media, right, with perforation.

	e.  WD AGO Form 100 (Army of the United States Separation Qualification Record) shows: his date of entry into active services as 7 August 1943; date of separation as 1 March 1946; Military Occupational Specialty as Basic Training Infantry (521) for 3 months and Communications Chief (542) for 26 months; and Summary of Military Occupations as Communication Chief:  was in charge of section installing communications systems, worked with switchboards, telephones, and radios.

7.  The 98th Infantry Division arrived in Oahu, Hawaii on 19 April 1944, responsibility for the defense of the Hawaiian Islands and continued training for deployment to Asia.  

8.  The actual combat experience of the 98th division was by 200 Soldiers from the 389th and 291st Infantry Regiments who fired 4.2 mortars aboard Landing Craft Infantry while on detached service to the Navy.  In addition, 38 men from the 98th Division Headquarters Company were detached to the XXIV Corps (7th Infantry Division and 96th Infantry Division (383rd Infantry Regiment)) during the invasion of the Philippines.  Nearly all of the men involved were awarded the Combat Infantry Badge.

9.  The war drew to a close before the 98th Infantry Division was deployed to an active combat zone.  Instead, the 98th Infantry Division arrived in Japan on 27 September 1945 and served in Osaka, Japan as part of the occupying force unit 16 February 1946 when the unit was inactivated.  The 98th Infantry Division has the distinction of being the only active Infantry Division during World War II not to be committed to battle.

10.  On 13 August 2013, HRC representative determined a search of their World War II data did not find evidence of a Purple Heart Award for the deceased service member.

11.  By regulation (AR 600-8-22 - Military Awards), 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 medical treatment
* the medical treatment must have been made a matter of official record

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined relief was not warranted.  The Board noted the picture of a plaque/shadow box that contains images of medals/ribbons, including the PH.  However, the Board found no record to show the applicant was ever awarded the Purple Heart.  Orders are needed to support any personal decorations.  

The Board also noted he had a history of hearing problems but that did not qualify him for the PH.  There are medical documentation for illness (poisoning) but no PH is listed.  His separation physical mentions food poisoning and otitis (ear infection) but does not mention any wounds as a result of hostile action.  If the applicant can come up with additional documentation that can pinpoint the date of any wounds and cause of any wounds, she may reapply to this Board.   



BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	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.
	 
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.

REFERENCES:

1.  Title 10, USC, 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation 600-8-22 (Military Awards) provides that 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 a medical officer, and the medical treatment must have been made a matter of official record.

	a.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather, he or she is entitled to it upon meeting specific criteria.

	b.  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 below.  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.

	c.  The key issue commanders must take into consideration when contemplating an award of this decoration is 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 is not sole justification for award.

	d.  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

	e.  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

3.  Website https://history.army.mil/html/forcestruc/cbtchron/cc/098id.htm, shows the history of the 98th Infantry Division during World War II.

4.  Website http://www.98div.com, shows the history of the 98th Infantry Division during World War II.

ABCMR Record of Proceedings (cont)	 AR20170004053


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