RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           3 February 2005
      DOCKET NUMBER:  AR20040000139


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Larry J. Olson                |     |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, in effect, award of the Purple Heart (PH).

2.  The applicant states, in effect, that he is entitled to award of the PH
for injuries he received as a result of enemy action on or about 15
September 1943.

3.  The applicant provides a self-authored statement and three third-party
statements in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 28 December 1945.  The application submitted in this case
is dated 13 April 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 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 record shows he entered active duty as a Reserve
officer on
1 July 1942.

4.  On 19 March 1943, he arrived in the European Theater of Operations
(ETO) for duty.  He served in the ETO until departing for the United States
on
10 September 1945.

5.  There is a Report of Physical Examination (WD AGO Form 63) on file that
documents the separation physical examination taken by the applicant on
18 September 1945.  This document indicates the applicant suffered no
serious illnesses, injuries or hospitalization while on active duty.
Further, there is no entry or indication in the remarks section of this
document that shows the applicant ever suffered a combat related
wound/injury.

6.  On 28 December 1945, the applicant was honorably separated after
completing a total of 3 years, 5 months and 28 days of active military
service.  The separation document (WD AGO Form 53-98) he was issued at the
time shows he participated in the Sicily, Naples-Foggia, Rome-Arno, Po
Valley and North Apennines campaigns of World War II.
7.  The WD AGO Form 53-98 also shows that during his tenure on active duty
during World War II, the applicant earned the European-African-Middle
Eastern Campaign Medal.  Item 30 (Wounds Received in Action) contains the
entry “None”.  The applicant authenticated this document with his signature
in
Item 44 (Signature of Officer Being Separated).

8.  Subsequent to his release from active duty, the applicant served as an
active member of the United States Army Reserve (USAR) until being
transferred to the Retired Reserve on 8 June 1972.  He was ultimately
retired from the Army on
29 March 1980.  His Officer Qualification Record (DA Form 66), which he
last audited in March 1971, shows, that during his military service tenure,
he earned the Armed Forces Reserve Medal, European-African-Middle Eastern
Campaign Medal and Army Reserve Components Achievement Medal.  The PH is
not listed among the awards listed on the DA Form 66.

9.  The applicant provides a notarized self-authored statement and three
notarized third-party statements that indicate he was injured when he
leaped into a ditch to shelter himself from enemy aircraft fire on or about
15 September 1943, while serving in Italy.  The statements also indicate
the battalion commander helped the injured applicant to the battalion aid
station and told the battalion surgeon to note in the applicant’s record
that the PH was due.

10.  Army Regulation 600-8-22 (Military Awards) prescribes the Army’s
awards policy.  Paragraph 2-8 contains guidance on awarding the PH.  It
states, in pertinent part, that each approved award of the PH must exhibit
all of the following factors: wound, injury or death must have been the
result of enemy or hostile act or international terrorist attack; the wound
or injury must have required treatment by medical officials; and the
records of medical treatment must have been made a matter of official Army
records.

11.  Paragraph 5-11 of the awards regulation provides guidance on award of
the World War II Victory Medal.  It states, in pertinent part, that it
awarded for service between 7 December 1941 and 31 December 1946, both
dates inclusive.

12.  Paragraph 5-12 of the awards regulation provides guidance on award of
the European-African-Middle Eastern Campaign Medal.  It states, in
pertinent part, that a bronze service star is authorized with this award
for each campaign a member participated in while serving in the ETO.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH and the third-party
statements he provided were carefully considered.  However, by regulation,
in order to support award of the PH, there must be evidence to confirm a
member was wounded/injured as a result of enemy action, that he was treated
for the wound/injury by military medical personnel and a record of this
medical treatment must have been made a matter of official record.

2.  The evidence of record contains no verification that the applicant ever
received or was treated for a combat related wound/injury that would have
supported award of the PH.  Further, his WD AGO Form 53-98 contains the
entry “None” in Item 30 (Wounds Received In Action).  This entry indicates
the applicant never sustained a wound/injury as a direct result of or that
was caused by enemy action.  The applicant authenticated this separation
document with his signature, thereby verifying that the information it
contained, to include the Item 30 entry, was correct at the time the
document was prepared and issued.

3.  The applicant’s record also contains a separation medical examination
report that contains no indication that he ever sustained a combat related
wound/injury, or that he was ever recommended for or eligible for the PH.
Although the veracity of the statements provided are not in question,
absent some evidence of record to corroborate that the applicant sustained
and was treated for a combat related wound/injury, the regulatory burden of
proof necessary to support award of the PH has not been satisfied in this
case.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 December 1945.  Therefore, based on
the date the Board was established, 2 January 1947, the time for the
applicant to file a request for correction of any error or injustice
expired on 1 January 1950.  However, he 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
failure to file.

5.  The evidence does confirm that based on his World War II service and
campaign participation in the ETO, he is entitled to the World War II
Victory Medal and 4 bronze service stars with his European-African-Middle
Eastern Campaign Medal.  The omission of these awards from his WD AGO Form
53-98 is an administrative matter that does not require Board action to
correct.  Thus, administrative correction of his record 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

___MHM_  __JLO __  __LMB__  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 that based on his World War II service and campaign
participation in the ETO, he is entitled to the World War II Victory Medal
and 4 bronze service stars with his European-African-Middle Eastern
Campaign Medal; and by providing him a corrected separation document that
includes these awards.




            ___Melvin H. Meyer ____
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20040000139                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/02/03                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1945/12/28                              |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |Demobilization                          |
|BOARD DECISION          |DENY with Admin Note                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  61   |107.0015                                |
|2.  46                  |107.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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