RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 18 November 2003
         DOCKET NUMBER: AR2003088926

         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
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Mark D. Manning		Member
Ms. Barbara J. Ellis		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, in effect, that the Purple Heart (PH) and Bronze Star Medal (BSM) be added to the separation document (WD AGO Form 53-55) of her deceased husband, a former service member (FSM).

2. The applicant states, in effect, that the FSM’s PH and BSM were not included in the list of awards on his WD AGO Form 53-55. She claims that her husband was awarded the PH as a result of being wounded at Normandy. She claims that after being wounded, he was sent back to a hospital in England. She claims that the FSM was awarded the PH at the hospital and that the medal was sent home to her by the Red Cross, who indicated that her husband had been wounded. She further states that although he did not talk about the specific action, she also believes he was awarded the BSM. She concludes by commenting that her son, daughter, and grandchildren are very interested in the FSM’s service record and would like all his achievements recorded in his honorable discharge papers.

3. The applicant provides the following documents in support of her application: self-authored statement; FSM’s death certificate; picture of the FSM; 29 July 2002 letter from the National Personnel Records Center; Authorization for Issuance of Awards (DA Form 1577), dated 25 July 2002; Department of Veterans Affairs (VA) award of disability compensation, dated 29 October 1946; and a third party letter from a friend who served with the FSM.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of the awards listed on the FSM’s
WD AGO Form 53-55 that was issued on 12 November 1945. The application submitted in this case is dated 4 April 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.

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3. The FSM’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 WD AGO Form 53-55 issued to the FSM on the date of his discharge shows that he entered active duty in the Army on 17 February 1941. He continuously served on active duty until being honorably separated on
12 November 1945.

5. The FSM’s WD AGO Form 53-55 also shows that he served in the European Theater of Operations (ETO) from 24 February 1944 through 29 October 1945. It further reveals that he earned the Combat Infantryman Badge (CIB) and that he participated in the Normandy campaign of World War II. This document also shows that earned the following awards during his tenure on active duty: American Defense Service Medal; American Campaign Medal;
European-African-Middle Eastern (EAME) Service Medal; and Army Good Conduct Medal. Item 34 (Wounds Received in Action) contains the entry “None.”

6. The available evidence also includes a letter request for awards from the FSM, dated 12 October 1978. In this request, the applicant asks that he be awarded the BSM based on his having been awarded the CIB. The FSM provided a copy of his WD AGO 53-55; however, he made no mention of or request for the PH.

7. The evidence also includes a copy of a DA Form 1577, dated 25 July 2002, issued by the Army Soldier and Biological Chemical Command, Philadelphia, Pennsylvania. This document shows that on this date, in addition to the other awards listed on his WD AGO Form 53-55, the applicant was issued the following awards that had not previously been recorded on the separation document: Bronze Star Medal; 1 bronze service star for his EAME Service Medal; World War II Victory Medal; and Marksman Marksmanship Qualification Badge with Rifle Bar. The PH was not issued to him at this time.

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8. The supporting letter from an individual that served with the FSM, while outlining some events that occurred while they were serving in the ETO, did not provide specific information on the FSM being wounded or injured in action. In addition, the VA claim documents, while granting service connected status for some conditions, is also void of any specific information in regard to the FSM being wounded or injured in action.

9. Army Regulation 600-8-22 (Military Awards) prescribes the Army’s awards policy. Paragraph 2-8 contains guidance on awarding the PH. It states, in pertinent part, that the PH is authorized to members who are wounded in action. It further defines a wound as an injury to any part of the body from an outside force or agent sustained in action. It also stipulates that the wound for which a PH is being awarded must have required treatment by a medical officer, and the records of medical treatment for the wound or injury for which the PH is being awarded must have been made a matter of official record.

10. Paragraph 3-13 of the awards regulation outlines the criteria for the award of the Bronze Star Medal (BSM). Paragraph 3-13d (2) states, in effect, that the BSM is authorized to members of the Armed Forces of the United States who, after 6 December 1941, were cited in orders or awarded a certificate for exemplary conduct in ground combat against an armed enemy between
7 December 1941 and 2 September 1945, inclusive, or whose meritorious achievement was otherwise confirmed by documents executed prior to 1 July 1947. This paragraph also stipulates that for this purpose, an award of the CIB is considered as a citation in orders.

DISCUSSION AND CONCLUSIONS:

1. The applicant’s contention that her deceased husband earned the PH and the supporting documentation she submitted in support of this assertion were carefully considered. However, there is insufficient evidence available to support this claim of entitlement to the PH.

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2. By regulation, in order to support award of the PH, there must be evidence showing that the soldier was wounded or injured in action, that the wound for which the award is being made required treatment by military medical personnel and this treatment must have been made a matter of official record.

3. The available evidence includes a properly constituted separation document that was authenticated by the FSM with his signature on the date of his separation from active duty. This document does not include the PH in the list of earned awards.

4. Further, in 1978, the FSM requested that he be issued the BSM based on his having earned the CIB, but made no request for issue of the PH. In the absence of any evidence confirming the FSM’s entitlement to the PH, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.

5. The records show the FSM should have discovered the perceived error related to award of the PH now under consideration on 12 November 1945, the date he separated from active duty. Therefore, based on the establishment date of this Board, 2 January 1947, the time for this application to be filed for correction of any error or injustice expired on 2 January 1950. However, the application was not filed within the 3-year statute of limitations and the applicant has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse the failure to file in regard to that issue.

6. However, the evidence does show that the FSM was entitled to the BSM and other awards that were not listed on his separation document. These errors do not require action by the Board. Therefore, administrative correction of the FSM’s record will be accomplished by the Army Review Boards Agency (ARBA) Support Division, St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

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BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

_MM___ __JS___ __BE __ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. The Board determined that the evidence presented and the merits of this case are insufficient to warrant the award of the Purple Heart to the FSM, and therefore, it would not 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.

2. The Board did determine that administrative errors in the record of the FSM should be corrected. Therefore, the Board requests that the ARBA Support Division-St. Louis administratively correct the records of the FSM to show his entitlement to the Bronze Star Medal, 1 bronze service star with his
European-African-Middle Eastern Service Medal, World War II Victory Medal, and Marksman Marksmanship Qualification Badge with Rifle Bar; and to issue the applicant a corrected separation document that includes these awards.




                  John N. Slone
         CHAIRPERSON

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INDEX

CASE ID	AR2003088926
SUFFIX
RECON
DATE BOARDED	2003/11/DD
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1945/11/12
DISCHARGE AUTHORITY	AR 615-365
DISCHARGE REASON	Demobilization
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 61	107.0015
2. 46	107.0000
3.
4.
5.
6.