RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            23 MARCH 2004
      DOCKET NUMBER:   AR2003095410


      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. Thomas D. Howard, Jr.         |     |Chairperson          |
|     |Ms. Karen A. Heinz                |     |Member               |
|     |Mr. Lawrence Foster               |     |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 by shrapnel, on the left side, from
the neck down.  He states he was wounded on 21 October 1944 and was unable
to get to the aid station for treatment because he was sent out on a
detail.  He states a medic treated him.

3.  The applicant provides three identical statements from three different
individuals.  He also submits a second statement from one of the
individuals who signed one of the three identical statements.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an error which occurred on
3 January 1946.  The application submitted in this case is dated 24 January
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.  Information available to the Board indicates that the applicant entered
active duty on 5 October 1942 and arrived in the European Theater of
Operations in July 1944.  While overseas he was assigned to the 305th
Engineer Battalion.

5.  The applicant returned to the United States in December 1945 and on
3 January 1946 he was honorably discharged as a result of demobilization.
His separation document does not reflect entitlement to the Purple Heart
and item 29 (wounds received in action) reflects "None."



6.  The three identical statements submitted in support of the applicant's
were authenticated by individuals who state they were in the same
organization as the applicant and "witnessed" the applicant when he was
"wounded by shrapnel on October 21, 1944, at Pont-a-Mousson, France."  The
statements indicate that "due to the fact that so many men were wounded and
killed, he [the applicant] was briefly attended to and immediately sent out
on river reconnaissance."

7.  A second statement, authored by one of the individuals who had also
signed one of the three identical statements, indicated that the unit was
in a holding position until gasoline, tanks, artillery, men and assault
boats could be built up to make the push.  He indicated that the Germans
had commanding views of the valley and that any movements along the river
quickly brought on enemy artillery fire.  He stated the shrapnel hits along
the river struck many, wounding the applicant.

8.  There were no medical records available to the Board, or provided by
the applicant.  However, a member of the Board's staff review historical
files of the 305th Engineer Battalion, maintained at the National Archives
in College Park, Maryland, and was unable to locate any information
confirming that the applicant had been awarded the Purple Heart or wounded
as a result of hostile action.

9.  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.

10.  A review of Department of the Army Pamphlet 672-1 (Unit Citation and
Campaign Participation Credit Register) notes the applicant’s unit was
awarded the Army of Occupation Medal with “Germany” clasp, while the
applicant was a member of the organization.  The award was omitted from his
separation document.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant does provide statements indicating that he was
wounded, those statements were rendered more than 50 years after the fact
and are not supported by medical evidence or confirmed by any official
sources.

2.  In the absence of more compelling medical evidence, regrettably there
is an insufficient basis for award of the Purple Heart.




3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 January 1946, 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.

4.  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

__TDH __  __KAH__  __LF  ___  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 the Army of Occupation Medal with “Germany” clasp.





            __Thomas D. Howard, Jr.____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003095410                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20030323                                |
|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.                      |                                        |