RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            22 JUNE 2004
      DOCKET NUMBER:   AR2003098211


      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. John Slone                    |     |Chairperson          |
|     |Mr. Jose Martinez                 |     |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 and Silver Star.

2.  The applicant states, in effect, that he suffered from frostbite in
January 1945 and was treated by having snow rubbed on his ears.  In a 1994
letter, included with his application to the Board, he stated that there
was a War Department letter dated in 1945 that he was treated for frostbite
in January 1945 and trench foot in March 1945.  In that 1994 letter he
talks about frostbite to his feet.

3.  He also notes that he was wounded on 3 May 1945 during a fight with 500
German soldiers.  In the previously mentioned 1994 letter, he states that
he sustained glass fragments to his face when a “German machinegun opened
fired on our jeep while we were attempting to arrange an unconditional
surrender.”  He states that the windshield shattered and glass slivers
became imbedded in his face.

4.  He states that he dictated the surrender at Passau, Germany, on 2 May
1945 and was told, in a note from his commander, that he was being
recommended for award of the Silver Star.  In a January 2001 letter the
applicant related that he and another officer were ordered to enter
“Passau…to arrange for the surrender of the city.”  He states that he and
the other officer were in a jeep that was hit by enemy machinegun fire and
destroyed the jeep.  As a result, he states, they “leaped from the jeep and
crawled into the Hotel Passauer Wolff” where he conducted the surrender.
He states the following day he fought off 500 enemy soldiers and killed all
of them with the assistance of two other companies.

5.  In other letters provided to the Board, the applicant relates that
because he spoke German he dictated the surrender terms to a German woman
who could type.

6.  The applicant provides extracts from his Department of Veterans Affairs
records, several letters authored by him over the years to various military
agencies and officials, a copy of the 1945 note from his commander
indicating that he was recommending him for the Silver Star for arranging
the surrender “despite being wounded,” a copy of a 2 May 1945 document in
German, to which is attached an English translation, indicating the
document is the surrender agreement for the city of Passau, an extract from
an undated German newspaper the applicant states confirms his participation
in the surrender action and his being wounded.





CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records were among those that were partially
destroyed by the 1973 fire at the National Personnel Records Center in
1973.  However, while many of the documents in his file were partially
charred, copies of those documents were sufficient to reconstruct basic
information concerning the applicant’s service and allow the Board to
conduct a fair and impartial review of this case.

2.  The applicant entered active duty on 2 November 1942.  According to his
separation document, and entries in his personnel record, he arrived in the
European Theater of Operations on 21 January 1945.  Entries in his
personnel record note that he served in France from 21 January 1945 until
18 March 1945, in Germany between 19 March 1945 and 4 May 1945, in Austria
from 4 May 1945 to 19 August 1945, returned to Germany for service between
19 August 1945 and 15 February 1946, and in France again from 15 February
1946 to
26 February 1946 when he departed Europe en route to the United States.

3.  Documents contained in the applicant’s official file, and entries on
his separation document, confirm he was awarded the European-African-Middle
Eastern Campaign Medal, the Combat Infantryman Badge, and the Army Good
Conduct Medal.  His separation document also notes that he was awarded the
World War II Victory Medal and the American Campaign Medal.  Neither his
separation document, nor his enlisted personnel record indicate that he was
awarded the Purple Heart or the Silver Star, or that he had ever been
wounded as a result of hostile action.

4.  The limited medical documents available to the Board, which were
extracted from his official file, indicate that he was treated in September
1945 for tonsillitis. An 11 March 1946 certificate from the Office of The
Adjutant General of the Army, notes only the September 1945 treatment for
tonsillitis and makes no mention of treatment for frostbite or combat
incurred wounds.

5.  In a 1946 document from the Department of Veterans Affairs, an
adjudication officer requested clinical records and enlistment and
discharge examination documents which could substantiate the applicant’s
claim of “partial deafness in right ear March 1945, Nervousness Jan 1943,
Difficulty in sleeping Feb. 1943.”  There was no mention of any combat
incurred wounds or frostbite in that 1946 application.

6.  In a 1994 document the applicant requested reconstructed medical
records for his alleged treatment of “glass below right eye and other glass
fragments in face,” frostbite and trench foot.

7.  The copy of the note, which the applicant states his commander wrote to
him on 9 May 1945, is addressed to “Sgt” and states:

      for your heroic actions on May 3, in Passau, Germany in arranging for
      the surrender administratively of that city despite being wounded.  I
      have submitted a recommendation to [officer’s name] for you to receive
      a Silver Star for your bravery also for your bravery in [unreadable]
      of the 2nd S.S. Infantry Division.

The statement contains the handwritten signature block of the commander of
Company K, 261st, 3rd Battalion and Artillery Battalion Command, with the
added notation of “65th” Infantry Division.  The statement also contains
what appears to be an added notation in the lower left of the statement of
“DSC” followed by a question “?” mark.

8.  On 11 March 1946 the applicant was honorably discharged in the rank of
corporal.  His separation document indicates that the highest grade he held
was corporal.  The separation document does not note any wounds received in
action in the space provided for that information on his separation
document.

9.  In a War Department Adjutant General Office Form 106 (Request for
Decoration and/or Citation), which the applicant authenticated, and was
likely prepared as part of his separation action, he made no mention of
being entitled to any awards of the Purple Heart or the Silver Star.  The
form was used to identify awards which an individual believed he/she may
have been entitled to while in the service, but which were not confirmed in
available records.

10.  The extract from a German newspaper, which the applicant claims
confirms his participation in the surrender event and that he was wounded,
is in German and not translated.  The document also does not contain a date
confirming the date of publication.

11.  Extracts from the applicant’s Department of Veterans Affairs records
indicate that in 2001 he reported that he sustained frostbit of his
extremities and ears and was treated at Camp Lucky Strike in France.  He
related that at the time his frozen ears were treated by being rubbed in
the snow.

12.  In 1995 the applicant’s records were amended to reflect entitlement to
the Bronze Star Medal based on the applicant’s World War II Combat
Infantryman Badge.

13.  In August 2003 the Army Decorations Board considered a recommendation
for award of the Silver Star for the applicant.  That Board concluded that
the degree of action and service rendered did not meet the strict criteria
for the award and as such, on behalf of the Secretary of the Army,
disapproved award of the Silver Star.

14.  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.

15.  While award of the Purple Heart for frostbite injuries is currently
prohibited, such injuries were previously a basis for the award.  Until
1951 Army Regulation 600-45, which governed the award of Army decorations,
stated that for the purpose of considering an award of the Purple Heart, a
“wound” is defined as an injury to any part of the body from an outside
force, element, or agent sustained while in action in the fact of the armed
enemy or as a result of a hostile act of such enemy.  An “element” pertains
to weather and the award of this decoration to personnel who were severely
frostbitten while actually engaged in combat is authorized.

16.  Army Regulation 600-8-22 also provides that the Silver Star is awarded
for gallantry in action against the enemy.  The required gallantry
(spirited and conspicuous acts of heroism and courage) must have been
performed with marked distinction.

DISCUSSION AND CONCLUSIONS:

1.  There is no medical evidence, and the applicant has not provided any
which confirms that he was wounded in action during World War II which
required treatment by a medical officer, one of the primary requirements
for the award.  Additionally, it is noted that in numerous documents,
prepared shortly after the applicant’s separation from active duty, he
failed to mention any wounds sustained as a result of hostile action or
that he had suffered frostbite injuries so severe that they also required
treatment by a medical officer.  The applicant’s allegations regarding
combat wounds and frostbite do not appear in documents until several years
after his separation.

2.  Neither the information contained in the note, which the applicant
states was written by his former commander, or information contained in the
undated German newspaper would be sufficiently compelling evidence to
warrant an award of the Purple Heart, in the absence of medical evidence
which could corroborate that information.

3.  The applicant’s recommendation for award of the Silver Star was
properly adjudicated by the Army Decorations Board.  The applicant has not
provided any evidence of any error or injustice in the decision of that
board and as such there is no basis to overturn that decision.  While the
applicant may have participated in the surrender action as an interpreter,
such participation would not have involved the spirited and conspicuous
acts of heroism and courage necessary for an award of the Silver Star.

4.  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 the aforementioned requirement.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JS___  ___JM __  ___LF  __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




            ______John Slone_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003098211                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040622                                |
|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.                      |                                        |