RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           29 January 2004
      DOCKET NUMBER:   AR2003090055


      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. Richard P. Nelson             |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Raymond V. O’Connor           |     |Chairperson          |
|     |Mr. Walter T. Morris              |     |Member               |
|     |Ms. Karen Y. Fletcher             |     |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 correction of his WD AGO Form 53-55 (Enlisted
Record and Report of Separation-Honorable Discharge) to show award of the
Purple Heart for injuries sustained in combat.

2.  The applicant states that he believes he should have been awarded the
Purple Heart for injuries to his back as a result of enemy artillery fire.
He further states that he is in receipt of disability compensation from the
Department of Veterans Affairs (DVA) for these injuries and feels that
award of the Purple Heart is “right and fitting.”

3.  The applicant provides a copy of DVA Docket Number 94-32513 that awards
him service-connected disability for “a lower back syndrome including
peroneal palsy, degenerative arthritis of L4-S1 and radiation of pain to
the lower extremities.”

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of error that occurred on 3 July
1946. The application submitted in this case is dated 3 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.

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 available records show that the applicant was inducted on 28 July
1944 and completed training as an infantryman.  He arrived in the European-
African-Middle Eastern Theater of Operations on 6 February 1945 and served
in the Rhineland and Central Europe campaigns.  The applicant returned to
the United States on 20 July 1945 and was separated from the service on 3
July 1946.  His WD AGO Form 53-55 shows that he is entitled to the
following awards: the Combat Infantryman Badge; the Army Good Conduct
Medal; the Army of Occupation Medal (Germany); the European-African-Middle
Eastern Campaign

Medal; the American Campaign Medal; the World War II Victory Medal; and,
the Expert Marksmanship Badge with M-1 Rifle Bar.

5.  Item 33 (Decorations and Citations) of the applicant’s WD AGO Form 53-
55, which is authenticated in his own hand, does not show entitlement to
award of the Purple Heart.  Item 34 (Wounds Received in Action) of the WD
AGO Form 53-55 contains the entry, "None."

6.  There are no orders in the available records that show that the
applicant was awarded the Purple Heart and the applicant has not provided a
copy of orders awarding him the Purple Heart.

7.  There are no medical documents in the available records, to include
hospital admission cards of the Office of The Surgeon General, commonly
referred to as the "SGO Files”, that show the applicant was wounded, or
treated for wounds, as a result of hostile action.

8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part,
that the Purple Heart is awarded to any member of an Armed Force who, while
serving under competent authority in any capacity with one of the U.S.
Armed Services after 5 April 1917, has been wounded or killed 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.

9.  Army Regulation 600-8-22 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.

10.  Army Regulation 600-8-22, in pertinent part, authorizes award of a
bronze service star, based on qualifying service, for each campaign listed
in Appendix B of this regulation and states that authorized bronze service
stars will be worn on the appropriate service medal.






DISCUSSION AND CONCLUSIONS:

1.  A review of the DVA Docket Number 94-32513 shows that the applicant was
granted compensation for a service-connected disability.  However, it
provides no evidence that the applicant was wounded, or treated for wounds,
as a result of hostile action.  To the contrary, the decision appears to be
based on the opinions of a private chiropractor, statements from the
applicant, and several lay statements from “in-service buddies” some 48
years after the incident in which the applicant claims to have been
wounded.

2.  The applicant authenticated his WD AGO Form 53-55, which did not show
award of the Purple Heart or wounds sustained in action.  There are no
medical records that show the applicant was wounded, or treated for wounds,
as a result of hostile action.  There are no orders or certificates that
awarded the applicant the Purple Heart.  Therefore, the applicant is not
entitled to award of the Purple Heart or correction of his records to show
this award.

3.  Records show the applicant should have discovered the error or
injustice now under consideration on 3 July 1946, 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.

4.  The evidence shows that the applicant’s record contains administrative
error(s) that do not require action by the Board.  The necessary
corrections will be accomplished administratively by the Case Management
Support Division (CMSD), St. Louis, Missouri, as outlined in paragraph 2 of
the Determination/Recommendation section below.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

___wtm__  ____kyf__  ___rvo__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented and the merits of this
case are insufficient to warrant the relief requested, 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 determined that administrative error in the records of the
individual should be corrected.  Therefore, the Board requests that the
CMSD, St. Louis,
Missouri administratively correct the records of the individual concerned
to show award of the:

      a. Bronze Star Medal, based on award of the Combat Infantryman Badge;
and,

      b. two bronze service stars, to be affixed to the European-African-
Middle Eastern Campaign Medal.




            ________Raymond V. O’Connor, Jr.______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003090055                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20030129                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |