RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            13 APRIL 2004
      DOCKET NUMBER:   AR2004099971


      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. Roger W. Able                 |     |Chairperson          |
|     |Mr. Robert J. Osborn II           |     |Member               |
|     |Mr. Yolanda Maldonado             |     |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 award of the Purple Heart and Soldier's Medal.

2.  The applicant states, in effect, that he was wounded on 16 or 17 April
1945 near Garcena, Germany.  He states that while attempting to pursue two
German Soldiers, who were dressed as civilians, he "felt a ping in my left
backside, put my hand there, and [it] stuck to blood.  I was hit."  He
states he was treated by unit medical personnel and then transferred to a
general hospital in France.  He states he was operated on and given the
Purple Heart by French nuns who were passing them out.  He states that he
returned the medal.  He states he was "feeling low" because he was told the
bullet was still in him and could not be removed because he would limp.

3.  The applicant outlines the action for which he believes he should have
received the Soldier's Medal.

4.  The applicant provides an extract from a publication titled The 116th
AAA Gun Bn Mobile which contains a list of Soldiers who were wounded and a
notation that the applicant "received a bullet wound while out on patrol in
search for some SS troops in the area."  He also submits a copy of his
Department of Veterans Affairs rating document, in addition to his self
authored statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of error which occurred on
8 December 1945.  The application submitted in this case is dated 21
October 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 requested correction of his records to show award of the
Soldier’s Medal.  There are no orders or other evidence authorizing award
of this decoration.  In the absence of a proper award authority for this
decoration, the applicant may request award of the Soldier’s Medal under
the provisions of Section 1130 of Title 10, United States Code.  The
applicant has been notified by separate correspondence of the procedures
for applying for this decoration under Section 1130 and, as a result, it
will not be discussed further in the Record of Proceedings.
4.  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.

5.  The applicant's separation document indicates that he entered active
duty on 31 March 1943 and served in the European Theater between October
1943 and 23 November 1945.  He was assigned to the 116th Antiaircraft
Artillery Gun Battalion.  He was honorably discharged on 8 December 1945.

6.  The applicant's separation document, which he authenticated with his
signature and thumbprint, does not reflect entitlement to the Purple Heart
and item 34 (wounds received in action) reflects "NONE."

7.  The unit publication, submitted by the applicant in support of his
application, lists his name as one of the unit members who were wounded.
The publication also contains the statement "Only one casualty was suffered
during this action, [the applicant] of Able received a bullet wound while
out on patrol in search for some SS troops in the area."  The basis for the
information regarding the applicant, and the source of the publication,
were not available to the Board.

8.  The Department of Veterans Affairs rating document, prepared in May
2002, indicated that the applicant had been granted a 10 percent disability
rating for "scar, gunshot wound, left buttock, with retained bullet, muscle
group XVIII…."  The document does not cite the medical documents or records
that served as the basis for the determination.

9.  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.

10.  A review of Department of the Army Pamphlet 672-1 (Unit Citation and
Campaign Participation Credit Register) notes the applicant’s unit was
credited with participating in an assault landing during the applicant’s
period of assignment.  His assault landing participation should be
reflected as a bronze arrowhead on the European-African-Middle Eastern
Campaign Medal, which is reflected on his separation document.  The unit
was also awarded the Army of Occupation Medal with “Germany” clasp during
his tenure with the organization.



DISCUSSION AND CONCLUSIONS:

1.  Unfortunately, there is no medical evidence from any official Army
source which confirms that the applicant was wounded as a result of hostile
action during World War II, as he contends.  The applicant's separation
document, which he authenticated, indicates that he was not wounded in
action, in spite of the fact that he was separated less than 9 months after
he states he was hospitalized for his combat wound.

2.  In the absence of more compelling medical evidence, which confirms that
the applicant was wounded as a result of hostile action, it would be
inappropriate, at this time, to award him the Purple Heart.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 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.

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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

_RWA  __  __RJO __  __YM ___  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 a bronze arrowhead on his European-African-Middle Eastern
Campaign Medal and the Army of Occupation Medal with “Germany” clasp.




            ____ Roger W. Able______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004099971                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040413                                |
|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.                      |                                        |