RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 5 February 2004
         DOCKET NUMBER: AR2003088572


         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. John P. Infante		Member
Ms. Karen A. Heinz		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests award of the Purple Heart. (The applicant died following submission of his application).

2. The applicant states that he was wounded in combat in Italy during World War II. He contends that he was hit by a machinegun bullet and it lodged next to his heart. He contends that there were no medics around at the time and the bullet remains in his chest.

3. The applicant provides a statement, dated 16 August 1993, from a nurse at the Department of Veterans Affairs (DVA) Medical Center in Seattle, Washington; an operation report, dated 27 September 1993; letters, dated 7 July 2003 and
12 November 2002, from a Member of Congress; an endorsement, dated
20 December 1943; and a letter of support, dated 1 November 2002.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error which occurred on
10 February 1946. The application submitted in this case is dated 16 February 2002.

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 was inducted on 17 November 1942. He served as a gunner in the European Theater of Operations from 30 April 1944 through 29 November 1944 when an Office of The Surgeon General Hospital List shows he was invalided home due to bronchial asthma. The Office of The Surgeon General Hospital List did not indicate there was a history of prior disease or injury. The applicant was honorably discharged on 10 February 1946.


5. The applicant's WD AGO Form 53-55 (Enlisted Record and Report of Separation) shows the World War II Victory Medal, the American Campaign Medal, the European-African-Middle Eastern (EAME) Campaign Medal, the Good Conduct Medal, and the Meritorious Unit Commendation as authorized awards. The applicant's WD AGO Form 53-55 also shows that he received the Combat Infantryman Badge during World War II. Item 6 (Organization) on his WD AGO Form 53-55 shows his organization as the 362nd Infantry Regiment.

6. Item 34 (Wounds Received in Action) on his WD AGO Form 53-55 shows the entry, "NONE."

7. There is no evidence in the available records that shows the applicant was awarded the Purple Heart or was wounded as a result of hostile action during World War II.

8. The historical files of the 362nd Infantry Regiment of the 91st Infantry Division located at the National Archives in College Park, Maryland, failed to produce orders for the Purple Heart.

9. The applicant provided a statement, dated 16 August 1993, from a nurse at the DVA Medical Center in Seattle, Washington. The nurse attests that a retained bullet was noted within the applicant's left side of his abdomen during an operation on 3 August 1993. However, there is no evidence that this bullet was the result of hostile action during World War II.

10. The applicant also provided an endorsement, dated 20 December 1943, which states that he was injured in the line of duty. However, there is no evidence that this injury was the result of hostile action.

11. The applicant's WD AGO Form 53-55 shows that he participated in one battle and campaign during World War II.

12. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound 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, and the medical treatment must have been made a matter of official record.

13. Army Regulation 600-8-22 also provides, in pertinent part, that the Bronze Star Medal is awarded for heroism and for meritorious achievement or service in military operations against an armed enemy. The Bronze Star Medal is authorized for each individual who was cited in orders or awarded a certificate for exemplary conduct in ground combat between 7 December 1941 and


2 September 1945 or whose achievement or service, during that period, was confirmed by documents executed prior to 1 July 1947. An award of the Combat Infantryman Badge or the Combat Medical Badge is considered to be a citation in orders. This means, in effect, that the Bronze Star Medal is to be awarded to individuals who were authorized either badge for service during World War II.

14. Army Regulation 600-8-22, in pertinent part, authorizes award of the EAME Campaign Medal for qualifying service in the European Theater of Operations for the period 7 December 1941 to 8 November 1945. Army Regulation 600-8-22 also authorizes a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation or listed in item 32 (Battles and Campaigns) of the WD AGO Form 53-55. The regulation states that authorized bronze service stars will be worn on the appropriate campaign or service medal including the EAME Campaign Medal.

DISCUSSION AND CONCLUSIONS:

1. The nurse's statement provided in support of the applicant's claim for award of the Purple Heart does not show that the bullet noted in the applicant's left side of his abdomen in 1993 was the result of hostile action during World War II.

2. There is no evidence of record which shows that the applicant was injured or treated for wounds sustained as a result of hostile action during World War II. The Office of The Surgeon General Hospital List which indicated he was invalided home due to asthma did not indicate he had a prior injury. Therefore, the Board determined that there is insufficient evidence on which to base award of the Purple Heart in this case.

3. Based on award of the Combat Infantryman Badge, the applicant is entitled to an award of the Bronze Star Medal.

4. The applicant's WD AGO Form 53-55 shows the EAME Campaign Medal as an authorized award. However, his records show that he participated in one battle and campaign during World War II which entitles him to award of the EAME with one bronze service star.

5. Records show the applicant should have discovered the alleged error now under consideration on 10 February 1946; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 1 January 1950
(3 years after the Board was established on 2 January 1947). 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 failure to file in this case.


6. Evidence shows that the applicant’s records contain administrative errors which do 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

FNE____ JPI_____ KAH_____ DENY APPLICATION

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 errors in the records of the individual concerned should be corrected. Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show that he was awarded the Bronze Star Medal (based on award of the Combat Infantryman Badge) and the EAME with one bronze service star.





                  _Fred N. Eichorn________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003088572
SUFFIX
RECON
DATE BOARDED	20040205
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	107.0015
2.
3.
4.
5.
6.