RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            25 MARCH 2004
      DOCKET NUMBER:   AR2003093774


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


  The following members, a quorum, were present:

|     |Mr. Luther L. Santiful            |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Mr. Thomas E. O'Shaughnessy, Jr.  |     |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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests award of the Purple Heart.

2.  The applicant states he was wounded in action during the Normandy
invasion and feels that he should be recognized as having been wounded in
action.

3.  A statement, authored by another individual, indicated that the
applicant reported to him that he had been wounded during the invasion of
Normandy.  The author of the statement indicated that applicant stated that
he had received injuries to his abdomen, buttocks and legs from enemy bombs
that exploded in front of the half-track in which the applicant was manning
an antiaircraft gun.

4.  In addition to the statement, the applicant provides a copy of his
separation document, and a copy of his January 2003 Department of Veterans
Affairs (VA) rating decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an error which occurred on
24 December 1945.  The application submitted in this case is dated 23
February 2003.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s military 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 that the
applicant’s records were lost or destroyed in that fire.  However, there
were sufficient documents remaining in a reconstructed record for the Board
to conduct a fair and impartial review of this case.

4.  The applicant entered active duty on 20 November 1942 and arrived in
the European Theater of Operations in February 1944.  According to his War
Department Adjutant General Office Form 100 (Army of the United States
Separation Qualification Record), the applicant was assigned to the 447th
Antiaircraft Artillery Air Warning Battalion while in the European Theater.

5.  The applicant departed the European Theater in November 1945 and was
honorably discharged on 24 December 1945 as a result of demobilization.
His separation document does not reflect entitlement to the Purple Heart
and item 34 (wounds received in action) on his separation document reflects
“NONE.”  The applicant authenticated his separation document with his
signature and thumbprint.

6.  In January 2003 the VA authorized the applicant a 10 percent disability
rating for bilateral hearing loss and a noncompensable rating for “shrapnel
wound abdomen.”  They denied the applicant’s petition for service-connected
compensation for shrapnel wounds to his buttocks and legs.  In their rating
decision, the VA noted that there were no service medical records available
but acknowledged that what evidence was available confirmed that the
applicant was a “cannoneer and participated in Normandy and Northern
France” which was consistent with his report of being injured.  The basis
for denial of the shrapnel wounds to his buttocks and legs was based on the
lack of any “visible scarring except for the small scar seen on the
abdomen.”

7.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple
Heart is awarded for wounds 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.

8  A review of Department of the Army Pamphlet 672-1 (Unit Citation and
Campaign Participation Credit Register) notes the applicant’s unit was
credited with participating in an assault landing during the applicant’s
period of assignment.  His assault landing participation should be
reflected as a bronze arrowhead on the European-African-Middle Eastern
Campaign Medal, which is reflected on his separation document.  The unit
was also awarded the Army of Occupation Medal with “Germany” clasp during
his tenure with the organization.

DISCUSSION AND CONCLUSIONS:

1.  Unfortunately, there is insufficient medical evidence on which to base
an award of the Purple Heart.  The VA’s finding, more than 50 years after
the fact, that a scar on the applicant’s abdomen was sufficient for their
purposes to render a rating on service-connection, is not sufficiently
compelling to warrant award of the Purple Heart.

2.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 December 1945, the date of his
separation from active duty.  However, the ABCMR was not established until
2 January 1947.  As a result, the time for the applicant to file a request
for correction of any error or injustice expired on 1 January 1950.
However, the applicant did not file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse the failure to
timely file.

3.  Evidence shows that the applicant’s records contain administrative
error which does not require action by the Board.  Therefore,
administrative correction of the applicant's records will be accomplished
by the Case Management Support Division (CMSD), St. Louis, Missouri, as
outlined by the Board in paragraph 3 of the BOARD
DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__LLS  __  __LE ___  __TEO __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.

3.  The Board determined that administrative error in the records of the
individual should be corrected.  Therefore, the Board requests that the
CMSD-St. Louis administratively correct the records of the individual
concerned to show entitlement to a bronze arrowhead on his European-African-
Middle Eastern Campaign Medal and the Army of Occupation Medal with
“Germany” clasp.





            __   Luther L. Santiful_____
                   CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2003093774                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040325                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |