RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            11 MAY 2004
      DOCKET NUMBER:   AR2003097220


      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. Robert Duecaster              |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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 combat with the 28th Infantry
Division during World War II.  He notes that a War Department Adjutant
General Form 106 (Request for Decoration and/or Citation) indicates that he
was wounded in the left knee and thumb with shrapnel while in France.

3.  The applicant provides a copy of the Form 106 as well as copies of his
separation document, honorable discharge certificate, and separation
qualification record.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 26 November 1945.  The application submitted in this case is
dated 18 August 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.  Records available to the Board indicate that the applicant entered
active duty on 23 November 1942 and arrived in the European Theater of
Operations in October 1943 where he was awarded the Combat Infantryman
Badge.

4.  According to an 8 November 1944 memorandum to the 77th Evacuation
Hospital from the Evacuation Officer from the 618th Medical Clearing
Company Evacuation Center, the applicant was evacuated to the 77th
Evacuation Hospital and was not to be returned to the “Exhaustion Center”
and was recommended for non-combat duties.

5.  In November 1945 the applicant returned to the United States and
underwent a physical examination.  Although the examination does note that
the applicant was hospitalized for 1 month in England, there is no
indication that he was ever wounded or treated for any combat incurred
wounds.  The examination notes a well-healed scar on the applicant’s left
knee but does not attribute that scar to hostile action.

6.  On 25 November 1945 the applicant submitted a request for award of the
Purple Heart claiming that he was wounded in the left knee and thumb with
shrapnel in France and that he was awarded the Purple Heart in August 1944.
 The War Department Adjutant General Office Form 106, which was initiated
by the applicant 1 day prior to his discharge, indicates "the personnel
records of the individual shown above contain no evidence or authorization
for the following decorations and/or citations" and that the applicant was
submitting a claim for the Purple Heart.  The signature of the officer on
the form "swears or affirms that the above listed awards have not been
received and that no previous application has been made for these awards."
The officer's signature does not certify the authenticity of the
circumstances on which the claim is based nor serve as verification that
the applicant was entitled to the award requested.  In response to his
request, a 20 November 1946, letter notes that “since the records do not
show that you were wounded in action against the enemy your request for the
award of the Purple Heart cannot be approved.”

7.  On 26 November 1945 the applicant was honorably discharged as a result
of demobilization.  His separation document, which he authenticated, does
not reflect entitlement to the Purple Heart and item 34 (wounds received in
action) reflects “NONE.”

8.  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.

9.  Army Regulation 600-8-22 also provides, in pertinent part, that the
Bronze Star Medal is to be awarded to individuals who were authorized the
Combat Infantryman Badge or the Combat Medical Badge for service during
World War II.

DISCUSSION AND CONCLUSIONS:

1.  The Form 106, which the applicant argues, confirms that he was wounded,
was in fact merely a request for award of the Purple Heart, it was not
evidence that he was in fact wounded as a result of hostile action nor
service as confirmation that the applicant is entitled to an award of the
Purple Heart.  The 1946 response to his request for award of the Purple
Heart, further substantiates that there was no indication the applicant had
been wounded in action.

2.  There is no medical evidence, and the applicant has not provided any,
that he was wounded as a result of hostile action.  In the absence of such
evidence, there is no basis for an award of the Purple Heart.

3.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 November 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.

5.  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

__FE ___  __RD ___  __YM ___  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 Bronze Star Medal.




            _____Fred Eichorn_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003097220                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040511                                |
|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.                      |                                        |