RECORD OF PROCEEDINGS


      IN THE CASE OF:

      BOARD DATE:        17 FEBRUARY 2005
      DOCKET NUMBER:  AR20040003574


      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. Thomas Howard                 |     |Chairperson          |
|     |Mr. John Infante                  |     |Member               |
|     |Ms. Maribeth Love                 |     |Member               |

      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.

2.  The applicant states he sustained a "grazing wound" to his left hip
from "a tree burst of a German 88" in November 1944.  He states that the
wound was dressed by a medic attached to his unit who was subsequently
killed when attempting to reach another wounded Soldier.  He states that it
is possible that the medic never had time to report his wound.

3.  The applicant provides a statement of support from his local alderman
and a "battle honors” summary dated 19 November 1945 which recounts actions
of the applicant's unit in November 1944.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 17 October 1945.  The application submitted in this case
is dated
21 June 2004.

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 limitations 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's honorable discharge document indicates that the
applicant entered active duty on 28 October 1941 and was honorably
discharged on
17 October 1945.  He served in the European Theater of Operations between
August 1944 and June 1945.  He was awarded the Combat Infantryman Badge and
a Bronze Star Medal.  His separation document indicates that he was
assigned to the 378th Infantry.
5.  The "Battle Honors" document provided by the applicant in support of
his request recounts the activities of the 2nd Battalion, 278th Infantry,
between
10 November and 15 November 1944.  It notes that the unit suffered from
"continuous hail of artillery mortar and small arms fire" but was able to
completely cross a river by the morning of 12 November 1944.  The report
indicated that during the five days of action, the battalion suffered 200
casualties, but does not identify any casualties by name.

6.  There were no service medical records available to the Board, or
provided by the applicant.

7.  Item 34 (wounds received in action) on the applicant's October 1945
separation document reflects "NONE."  The applicant attested to the
accuracy of the information on the separation document by his signature and
thumbprint.

8.  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.

9.  Army Regulation 600-8-22 also provides, in pertinent part, that the
Bronze Star Medal is to be awarded to individuals who were authorized the
Combat Infantryman Badge or the Combat Medical Badge for service during
World War II.  Awards of the Bronze Star Medal based on an award of the
Combat Infantryman or Combat Medal Badge are commonly referred to as
conversion awards.

10.  A review of Department of the Army Pamphlet 672-1 (Unit Citation and
Campaign Participation Credit Register) notes the applicant’s unit was
awarded a Distinguished Unit Citation, now known as the Presidential Unit
Citation, a French Croix de Guerre, and an Army of Occupation Medal with
“Germany” clasp, during his tenure with the organization.  The unit awards
were omitted from his separation document.

DISCUSSION AND CONCLUSIONS:

1.  Unfortunately, there is no medical evidence which confirms that the
applicant was wounded as a result of hostile action.  In the absence of
such medical evidence, there is no basis for an award of the Purple Heart.

2.  In order to justify correction of a military record the applicant must,
or it must otherwise satisfactorily appear, that the record is in error or
unjust.  The applicant has failed to submit evidence that would satisfy
this requirement.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 October 1945, 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.  Evidence shows that the applicant’s records contain administrative
error which does 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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___TH __  __JI ____  ___ML  __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 error in the records of the
individual should be corrected.  Therefore, the Board requests that the
CMSD-St. Louis administratively correct the records of the individual
concerned to show entitlement to a Bronze Star Medal as a conversion award
based on his Combat Infantryman Badge, a Distinguished Unit Citation, now
known as the Presidential Unit Citation, a French Croix de Guerre, and an
Army of Occupation Medal with “Germany” clasp.



                                  _____Thomas Howard_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040003574                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050217                                |
|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.                      |                                        |


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