PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 4 June 2002
         DOCKET NUMBER: AR2001066215


         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. Chun		Director
Mr. Gerald E. Vandenberg		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Mr. Arthur A. Omartian		Member
Ms. Regan K. Smith		Member

         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)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that his records be corrected to show he was entitled to the Army of Occupation Medal and that his civilian occupation be shown as an airplane riveter. He also requests reconsideration of his application for award of the Purple Heart, the Bronze Star Medal and the World War II Victory Medal.

3. The applicant states, in effect, he is entitled to these medals and that he deserves the recognition of his wounds as a matter of principle.

4. His counsel contends, in effect, that since the applicant's service medical records were destroyed in the 1973 fire that all reasonable doubt should go to the applicant. Counsel states that since the Department of Veterans Affairs (VA) has granted the applicant service connection for scars as the residual of shrapnel wounds, the applicant is entitled to the Purple Heart.

5. Incorporated herein by reference are military records, which were summarized in the decisional document, prepared to reflect the Board's previous consideration of the case (AR1999021608) on 7 October 1999. As previously noted, the applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.

6. The applicant’s request for the Army of Occupation Medal is a new issue that requires Board consideration.

7. The Board's prior review afforded the applicant correction of his record to reflect award of the WWII Victory Medal and the Bronze Star Medal; therefore, the Board will not address these issues.

8. The applicant signed his discharge document after verifying the information on it at the time of his release. He has supplied no evidence that his civilian occupation is listed incorrectly. Since sufficient records to determine exactly what happened on this issue cannot be located, it is impossible for the Board to make a fair, impartial and equitable determination. Therefore the Board will not further address this issue.

9. The applicant submits a copy of a 22 October 2001 letter from his attending physician that states, in effect, that he believes that the applicant's scars are consistent with shrapnel wounds. He also submits a copy of his 3 October 2001 VA Rating Decision, which granted him service connection for scars, as residual for service incurred wounds.





10. Department of the Army Pamphlet 672-1, Unit Citation and Campaign Participation Credit Register, dated 6 July 1961, shows, among other information, credit for occupation duty during World War II. This document shows the applicant's unit, the 363rd Infantry Regiment, did not receive credit for occupation duty during World War II, but it did receive a Distinguished Unit Citation, during his tour of duty.

11. Army Regulation 600-8-22 provides, in pertinent part, that the Presidential Unit Citation (known as the Distinguished Unit Citation until 3 November 1966) is awarded for extraordinary heroism in action. A unit must display such gallantry, determination and esprit de corps in accomplishing its mission as would warrant award of the Distinguished Service Cross to an individual. Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) indicates that the 363^rd Infantry Regiment was cited for award of the Distinguished Unit Citation for the period 12 through 19 September 1944.

12. Army Regulation 600-8-22 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 required treatment by a medical officer, and the medical treatment must have been made a matter of official record.

13. Army Regulation 600-8-22 provides, in pertinent part, that the Army of Occupation Medal is awarded for service of thirty consecutive days at a normal post of duty in a qualifying location. Personnel at a qualifying location as an inspector, courier, escort, temporary or detached duty are precluded from eligibility. For Germany service must have been between 9 May 1945 and 5 May 1955.

14. Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, in accordance with its own policies and regulations, awards service connection and compensation on the basis that a condition exists that can be shown to have had its onset while the applicant was on active duty. VA regulations require application of the doctrine of reasonable doubt. It does not require that an injury be shown to have been a result of hostile action, that the wound required treatment by a medical officer, or that the medical treatment is a matter of official record.

15. Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for reconsideration is received within one year of the prior consideration and the case has not been previously



reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The staff of the Board is authorized to determine whether or not such evidence has been submitted. The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.

CONCLUSIONS:

1. Neither the VA rating decision nor the statement from the applicant's doctor meets the criteria for award of the Purple Heart. Both are based on oral testimony from the applicant more than 55 years after the fact and does not outweigh the presumption of regularity as documented by the fact that the applicant signed the WD AGO 53-55, authenticating that he received no wounds in action. The doctrine of reasonable doubt is a mandated VA provision only.

2. Therefore, absent any other corroborating evidence of record there is no basis for award of the Purple Heart.

3. The applicant's unit is not shown to have been awarded occupation credit therefore, he is not entitled to the Army of Occupation Medal.

4. The applicant was attached to the 363^rd Infantry Regiment during the period that it was awarded the Distinguished Unit Citation (now known as the Presidential Unit Citation); therefore, it is in the interest of justice to have this decoration reflected on the applicant's discharge document.

5. In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below would correct an error and rectify an injustice.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected to show that the individual concerned is awarded the Presidential Unit Citation.


2. That so much of the application as is in excess of the foregoing be denied.


BOARD VOTE:

__JLP___ __AAO__ ___RKS_ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _ Jennifer L. Prater__
                  CHAIRPERSON

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INDEX

CASE ID	AR2001066215
SUFFIX
RECON
DATE BOARDED	20020604
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT Partial
REVIEW AUTHORITY
ISSUES 1.	107.0014
2.	107.0015
3.	107.0067
4.	107.0066
5.
6.