PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 25 September 2003
         DOCKET NUMBER: AR2003089939

         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. William Blakely		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Regan K. Smith		Member
Mr. Linda D. Simmons		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)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that his military records be corrected to show award of the Purple Heart (PH).

3. The applicant states, in effect, that he was wounded in action in Germany in the spring of 1945. He claims to have been treated at a field hospital and air evacuated to a hospital in England where he remained for several weeks. He states that the admitting physician told him he would receive the PH.

4. In response to a July 2002 application to the Board, a member of the Board staff administratively closed the applicant’s case without referral to the Board (AR2002076716) based on the lack of records and available documentation that would allow a fair and impartial review of the case. In his current request, the applicant takes exception to this decision. He states that he does not understand how the request of an honest and honorable man could be denied, which implies he was making a false statement. He states that he provided a correct and detailed account of his wounding by enemy fire, and the follow on hospital treatment. He states that he was never provided a copy of the medical reports or treatment records. He further states that he also provided a copy of an authorized pass that listed his rating as staff sergeant (SSG), and asks if he is also to assume that this documentation was not believed or even considered.

5. The applicant further states that he is now told the Army could not safeguard the records of 18 million service members, which destroyed the record of his
22 months of dedication to duty and the ability to verify his entitlement to the PH, and to correct his grade rating. In support of his application, he submits a copy of his separation document (WD AGO Form 53-55), his Honorable Discharge Certificate, and Special Order 125.

6. The applicant’s military records were 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 his records were lost in that fire. However, the Board has determined that there is sufficient documents available to allow a fair and impartial review of the case.

7. The available evidence includes the applicant’s WD AGO Form 53-55. This separation document shows that he was inducted into the Army and entered active duty on 4 May 1944, and that he continuously served in that status until being honorably separated on 27 March 1946. It also shows that he was trained and served in the military occupational specialty (MOS) 745 (Rifleman) and served with the 304th Infantry Regiment. Item 3 (Grade) confirms that he held the rank of private first class (PFC) on the date of his separation, and Item 38 (Highest Grade Held) indicates that the highest grade he held while serving on active duty was also PFC.

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8. The applicant’s WD AGO Form 53-55 also confirms that he served overseas in the European Theater of Operations (ETO) from 4 December 1944 to
12 March 1946, and that he participated in the Ardennes, Central Europe, and Rhineland campaigns of World War II. Item 33 (Decorations and Citations) shows that he earned the following awards during his tenure on active duty: Bronze Star Medal; European-African-Middle Eastern Campaign Medal, Army Good Conduct Medal, and World War II Victory Medal.

9. Item 34 (Wounds Received in Action) of the applicant’s WD AGO Form 53-55, contains the entry “NONE”, which indicates that he was not wounded in action during his active duty tenure. The applicant authenticated this document with his signature in Item 56 (Signature of Person Being Separated), thereby verifying the information contained in the document, to include the earned awards and highest grade held, were correct at the time the document was prepared and issued.

10. A travel document (Special Orders Number 125, Headquarters, Switzerland Leave Center), issued in November 1945 lists the applicant’s rank as SSG in the standard name line.

11. Army Technical Manual 12-235 prescribed the policy and procedure for preparing separation certificates and documents for enlisted personnel discharged, relieved from active duty, or transferred to a Reserve component. Section VI, paragraph 24, in effect at the time, stated that the grade held at the time of separation and the date of rank or appointment will be entered on WD AGO Form 53-55.

12. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual military awards. 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. A wound is defined as an injury to any part of the body from an outside force or agent sustained in action. 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.

13. 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.
14. Paragraph 5-12 contains guidance on awarding the European-African-Middle Eastern (EAME) Campaign Medal. It states, in pertinent part, that one bronze service star is authorized with this award for each campaign a member participated in during World War II.

15. Department of the Army Pamphlet 672-1 (Unit Campaign Participation Credit Register-World War II) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during World War II. It shows that while he was assigned, the applicant’s unit (304^th Infantry Regiment) was awarded the Army Occupation Medal with Germany Clasp.

16. Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). Paragraph 2-9 contains guidance on the burden of proof required to support a successful appeal to the ABCMR. It states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. It further states that the applicant has the burden of proving an error or injustice by a preponderance of the evidence.

CONCLUSIONS:

1. The Board notes the applicant’s contentions that he was wounded in action and entitled to receive the PH; and that the highest grade he held while serving on active duty was SSG. However, it finds insufficient evidence to support these claims.

2. In order to support the award of the PH, the awards regulation requires that there be evidence to show a member was wounded in action, that the wound for which the award is being made required treatment by military medical personnel, and the medical treatment must have been made a matter of official record. In this case, there is no evidence of record or independent evidence provided by the applicant to satisfy this regulatory burden of proof.

3. The Board also carefully considered the applicant’s claim that he held the rank of SSG while on active duty and the supporting travel document he submitted in support of this contention. However, the document provided is not an official appointment or promotion document, and there is no corroborating evidence to confirm that he was ever actually promoted or appointed to the rank of SSG while serving on active duty.

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4. The Board took special note of the fact that the applicant authenticated his separation document with his signature on the date of his separation, thereby verifying that the information contained in the WD AGO Form 53-55, to include the information in Items 3 (Rank), 33 (Decorations and Citations), 38 (Highest Grade Held), and 40 (Wounds Received in Action), was correct at the time the document was prepared and issued. Further, there is no indication that the applicant raised either the PH or rank issues at the time of his separation, or in the ensuing 55 years.

5. By regulation, the Board begins it consideration of each case with the presumption that what the Army did was correct, and the burden of proving otherwise rests with the applicant. In this case, the Board finds the applicant has failed to satisfy this regulatory criteria and it finds an insufficient evidentiary basis to support the requested relief.

6. The Board wishes to advise the applicant that it does not question the veracity of his claim of entitlement to the PH or his contention that the highest rank he held was SSG. However, based solely on the lack of supporting evidence, it is compelled to deny the requested relief in the interest of equity and justice to all those who served during World War II and who faced similar circumstances.

7. The evidence of record confirms that the applicant served as a Rifleman with the 304^th Infantry Regiment in the ETO from 4 December 1944 to 12 March 1946. This combat service in a qualifying infantry MOS and unit entitles the applicant to receive the CIB.

8. By regulation, the BSM is authorized for members who 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. The regulation stipulates that the CIB is considered a citation in orders of this purpose.

9. In view of the applicant’s qualifying combat infantry service in the ETO during World War II, the Board concludes that it would be appropriate to award him the CIB at this time. Further, based the regulatory criteria that authorizes the BSM to members who earned the CIB during the period 7 December 1941 through
2 September 1945, the Board also finds that it would be appropriate to award the applicant the BSM 1st Oak Leaf Cluster, for the period 4 December 1944 through 2 September 1945.

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10. The evidence of record also confirms that the applicant participated in three World War II campaigns while serving in the ETO, which entitles him to 3 bronze service stars with his European-African-Middle Eastern Campaign Medal. The record also verifies that he was assigned to his unit (304th Infantry Regiment) during the period it was awarded the Army of Occupational Medal with Germany Clasp. Therefore, the Board finds that it would also be appropriate to add these awards to his record at this time.

11. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by awarding the individual concerned the Combat Infantryman Badge, Bronze Star Medal with 1st Oak Leaf Cluster, and Army Occupational Medal with Germany Clasp; by showing he is entitled to 3 bronze service stars with his
European-African-Middle Eastern Campaign Medal; and by providing him a corrected separation document that includes these changes.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

_JS__ __LDS___ __RKS__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  JOHN N. SLONE
                  CHAIRPERSON

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INDEX

CASE ID	AR2003089939
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	YYYYMMDD
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	Partial Relief
REVIEW AUTHORITY
ISSUES 1. 61	107.0015
2.
3.
4.
5.
6.