RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 MAY 2005
      DOCKET NUMBER:  AR20040006349


      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. Kenneth H. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley Powell                |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Ms. Diane Armstrong               |     |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 that the medical record prepared by the 109th
Clearing Station on 15 November 1944 is incomplete.  The record should
indicate that his injury occurred as a result of enemy artillery fire, and
should indicate a laceration to the 3rd finger of his right hand, not his
left hand.  At the time of his injury he did not want the Purple Heart
because his injury seemed minor compared to all the injuries sustained by
Soldiers around him.

      a.  On the day that he was injured he was setting up a radio at the
      3rd battalion command post in the vicinity of Crosetto, Italy.  The
enemy began to shell the area and direct hits were made on his building.
He dove for the floor and landed among pieces of stone and glass-like
debris, probably pottery.  After the shelling ceased, he saw that he was
bleeding from a cut across the middle finger of his right hand.  He is
uncertain whether it was caused by shrapnel or the debris on the floor.

      b.  His injury was a direct result of enemy artillery fire on or about
           31 October 1944.  The severity of the wound suggests that its
cause was more than just “cut by glass.”

      c.  He wrapped a handkerchief around the finger and continued his
work.  He did not seek medical attention at the time because the wound was
not painful and it seemed a minor event that would heal itself.  On 13
November 1944 the battalion moved into a rest area and he went to the 109th
Clearing Station to pick up some band aids.  He was asked if the injury was
combat-related, and because there were some very seriously injured men
around him he could not equate his slightly cut finger with the severity of
their wounds.  All he wanted was some band aids and to return to the rest
area.  With the logic of a nineteen year-old he stated that it was cut by
glass and did not mention the rest of the story.

          d.  After the medics finished their examination, they said that
the tendon was cut or split and the finger was completely immobile.  It was
impossible for him to make a fist.  He was transferred to the 32nd Field
Hospital on                    15 November 1944.  On or about 18 November
1944 he was moved to the      81st Station Hospital, and about 2 months
later released and returned to his outfit.
3.  The applicant provides a paper showing the World War II statistics of
the    34th Infantry Division; a paper titled “The North Apennines
Campaign;” pages from a book titled “Dogfaces Who Smiled Through Tears;” a
copy of a Bronze Star Citation, which shows that he was awarded the Bronze
Star for heroic achievement in action on 16 and 17 April 1945; a copy of
the applicant’s Honorable Discharge; and copies of his medical records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 11 December 1945.  The application submitted in this case
is dated 17 August 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 enlisted in the Army on 2 February 1943 and served in the
European Theater of Operation during World War II with the 168th Infantry
Regiment, arriving in that theater in March 1944 and returning to the
United Stated in December 1945.  He participated in three campaigns and was
awarded the Bronze Star Medal, the European-African-Middle Eastern Campaign
Medal, the Good Conduct Medal, the World War II Victory Medal, and the
Combat Infantryman Badge.  He was discharged on 11 December 1945 at Fort
Dix, New Jersey.  Item 34 (Wounds Received in Action) of his discharge form
contains the word “NONE.”  His report of physical examination prior to his
discharge          (WD AGO Form 38) indicates that he fractured his right
second digit in a fall in October 1944 and was hospitalized for 2 ½ months.
 That report indicates the middle finger of his right hand had a limitation
for flexion of 20 percent.

4.  A 13 November 1944 medical report prepared by a doctor of Company C,
109th Medical Battalion, indicates that the applicant had a lacerated wound
to the third finger of his right hand accidentally incurred when he fell on
broken glass on 31 October 1944 near Crosetto, Italy.

5.  A 15 November 1944 medical report prepared at B Platoon, 32nd Field
Hospital, shows a diagnosis of laceration, involving extensor tendon,
moderately severe, third finger left [hand], an accidental injury when the
applicant fell on broken glass on 31 October 1944 near Crosetto, Italy.
That report indicates that extension was absent beyond the wound, but that
the finger could be extended passively – evacuate.

6.  Another medical record prepared by the 32nd Field Hospital indicates
that the applicant stated that about two weeks ago while on the line he cut
the finger of his right hand on a piece of glass lying on a table; that the
battalion medics put a splint on after cleaning it up; after about one week
when the splint was removed, he began moving his finger somewhat, and after
returning to [unreadable] status the doctor did not like its appearance and
evacuated him.

7.  A clinical record brief prepared at the 81st Station Hospital on 26
January 1945 shows that the applicant was admitted to the hospital on 18
November 1944  because of a laceration wound to the third finger of his
left hand, an accidental injury when he fell on glass in combat.  He was
discharged to duty on 26 January 1945.

8.  Army Regulation 600-8-22 provides 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.

9.  The above-mentioned regulation also provides for award of the Bronze
Star Medal to each member of the Armed Forces of the United States who,
after        6 December 1941 has been 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 award of a Combat
Infantryman Badge is considered as a citation in orders.

10.  The Unit Citation and Campaign Participation Credit Register shows
that the 168th Infantry Regiment was awarded the French Croix de Guerre for
its actions from 1 December 1943 to 31 July 1944.

DISCUSSION AND CONCLUSIONS:

1.  The applicant now states that he is not certain if his wound was caused
by shrapnel or the debris on the floor.  The 1944 and 1945 medical records,
however, are clear.  His injury on 31 October 1944 was accidental, caused
when he fell on glass.  While the Board has no reason to doubt the
statement of events he has provided regarding his wound, the medical
evidence clearly shows that his wound was accidental, and not as a result
of hostile action.  Consequently, his request for award of the Purple Heart
cannot be granted.
2.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 11 December 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.

3.  The evidence shows that the applicant’s record contains administrative
error that does 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 3 of the
Determination/Recommendation section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___SP __  ___PM __  ___DA __  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 Case Management Support Division at St. Louis is requested to
correct the applicant’s record to show a second award of the Bronze Star
Medal, by virtue of his award of the Combat Infantryman Badge, and award of
the French Croix de Guerre.




                                  ____ Shirley L. Powell_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040006349                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050503                                |
|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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