RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            27 APRIL 2004
      DOCKET NUMBER:   AR2003096625


      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. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Ms. Marla J. N. Troup             |     |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 that the records of his father-in-law, a
deceased former service member, be corrected to reflect award of the Purple
Heart.

2.  The applicant states, in effect, that he is not actually asking that
the Purple Heart be awarded, but that the medal be replaced.  He notes that
the award was previously awarded but lost following the death of his father-
in-law more than 60 years ago.  He states the request has become an issue
because of the 1973 fire at the National Personnel Records Center, which
destroyed his father-in-law’s records, and as such there is “no
documentation that the Purple Heart was awarded.”

3.  He states that he has done extensive research and is submitting
documentation “which in [his] judgment supports that [his father-in-law]
was killed in the line of duty during war in a combat zone.”  He states
that all of the individuals aboard the aircraft were “completely
incinerated” and to “maintain this was an accident has not been
substantiated.”  He states there is, however, “government recorded
documentation that does support the fact he was killed in action in the
line of duty.”

4.  He asks that “absent hard evidence that the medal was not previously
awarded or his death was accidental and not in the line of duty resulting
from the combat zone he was in, that the Purple Heart bestowed posthumously
by his country be replaced.”

5.  In support of his request he submits a copy of the War Department’s
“report of death,” a Department of Veterans Affairs form requesting
information from the Army, two pension/compensation documents, a 1943
statement indicating the former service member’s death resulted from an
injury incurred in line of duty and was not the result of his own
misconduct, an extract from a 1944 book titled Fighting for America: an
account of Jewish men in the armed forces – from Pearl Harbor to the
Italian campaign, and a copy of a May 1943 newspaper article.

CONSIDERATION OF EVIDENCE:

1.  Information available to the Board indicates that the former service
member entered active duty as an officer on 22 November 1942 and was a
member of the transportation corps.

2.  According to a 13 May 1943 War Department “report of death” the service
member was killed in the “North African Area” on 17 April 1943.  The cause
of death is listed as “incineration complete.”  The former service member
was initially interred in the American Military Cemetery in Oran, Algeria,
but subsequent re-interred at the North Africa American Cemetery, Carthage,
Tunisia.

3.  Department of Veterans Affairs documents, submitted by the applicant
and in files available to the Board, indicate that the former service
member’s widow applied for compensation following the death of her spouse.
Those documents merely indicate that the service member “died in the line
of duty.”  The documents do not indicate that the applicant’s death
resulted from hostile action.

4.  In April 1944 the Department of Veterans Affairs requested information
from the Army.  The form “requested that information be given…and this
sheet returned to the Veterans Administration.”  In response to item 22
(date and cause of death), the Adjutant General of the Army, a major
general, responded on the form that the service member died on 17 April
1943 and that the cause of death was “incineration complete.”  The entry
continued on the back of the form with the statement that “he was
accidentally killed as a result of an airplane accident in North Africa
while on duty status.  No additional information available.”

5.  Another Department of Veterans Affairs form, apparently associated with
payment of a death compensation entitlement to the service member’s father
also lists the “cause of death” as “accident in LOD [line of duty].

6.  A December 2000 statement, authenticated by the service member’s
daughter, in which she was “seeking a replacement of the Purple Heart
medal, awarded to my father” also indicates the cause of death as
“accident, line of duty.”

7.  The extract from the book Fighting for America was copyrighted in 1944
by the National Jewish Welfare Board in New York City.  The extract
contains the entry that the former service member was “killed in action at
Oran” and lists the Purple Heart.  The source of the information contained
in the book was not provided.  The 7 May 1943 newspaper article, published
in the “Indiana Jewish Chronicle” notes that “word has been received here
of the death of [the former service member] who was killed in action in the
North African front on April 17th.” The basis for that information is also
not provided.

8.  In a 31 July 2002 letter from the applicant to an official at the
National Personnel Records Center, he related that his father-in-law “was a
transportation officer and was engaged in a military mission when the
aircraft he was in exploded, crashed and was completely incinerated.”

9.  In addition to documents and correspondence associated with the burial
of the former service member’s remains, and disposition of his personal
effects, the Department of the Army Casualty file contained essentially the
same documents provided to the Board by the applicant and contained in
other files reconstructed by the various government agencies, including the
National Personnel Records Center.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent
part, that the Purple Heart is awarded for wounds sustained as a result of
hostile action.  Accidents, to include explosive, aircraft and vehicular,
not related to or caused by enemy action do not qualify for award of the
Purple Heart.

11.  Army Regulation 600-8-1 (Line of Duty Determination) notes that line
of duty determinations are essential for protecting the interest of both
the individual and the United States Government, where service is
interrupted by injury, disease, or death.  Line of duty investigations are
conducted essentially to arrive at a determination as to whether misconduct
or negligence was involved in the disease, injury, or death and if so, to
what degree.  Soldiers and/or their families stand to lose substantial
benefits if a determination results in a finding of not in line of duty.

12.  Army Regulation 600-8-22 states that the European-African-Middle
Eastern Campaign Medal was established in 1942 and awarded for service
within the European-African-Middle Eastern Theater between 7 December 1941
and
8 November 1945.  It also notes that the World War II Victory Medal is
awarded for service between 7 December 1941 and 31 December 1946.

DISCUSSION AND CONCLUSIONS:

1.  The statement provided by the Army’s Adjutant General in response to an
inquiry from the Department of Veterans Affairs in 1944 clearly indicates
that the former service member died as a result of an aircraft accident.
The information contained in the book and newspaper article are not
supported by the information contained in official government documents.

2.  The fact that the former service member’s death was determined to have
occurred in the line of duty is not, in and of itself, a basis for award of
the Purple Heart but merely a conclusion that the injury was not the result
of misconduct.  Additionally, the fact that an individual may have died in
a combat theater, or while the United States was engaged in war, is also
not a basis for an award of the Purple Heart.  The requirement exists that
the death must have been directly attributed to hostile action.
Regrettably, in this instance the evidence from official government
documents indicates that was not the case.

3.  Evidence shows that the former service member is entitled to
decorations which may be awarded administratively and which do not require
action by the Board.  Therefore, administrative correction of the former
service member’s records will be accomplished by the Case Management
Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in
paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__FE ___  __PHM __  _MJNT__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  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 European-African-Middle Eastern
Campaign Medal and the World War II Victory Medal.




            _____Fred Eichorn_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003096625                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040427                                |
|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.                      |                                        |