RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 April 2005
      DOCKET NUMBER:  AR20040001627


      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. Robert J. McGowan             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Shirley L. Powell             |     |Member               |
|     |Mr. Curtis Greenway               |     |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 that he be awarded the Purple Heart.

2.  The applicant states he was wounded by shrapnel during World War II.

3.  The applicant provides two self-authored letters (one dated 29 April
2002), a 6 June 1946 Veterans Administration (VA) Award of Disability
Compensation or Pension, and a copy of his WD AGO Form 53-55 (Enlisted
Record and Report of Separation - Honorable Discharge).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that all reasonable doubt as to entitlement to the
Purple Heart be resolved in the applicant's favor.

2.  Counsel states that all service records should be reviewed prior to
making a decision.

3.  Counsel provides no documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 17 October 1945.  The application submitted in this case is
dated 6 May 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.  This case is
being considered using reconstructed records, which primarily consist of
the documents supplied by the applicant.

4.  The applicant enlisted on 13 October 1942 and entered service on 15
July 1943 at Fort Dix, New Jersey.  He arrived in the European Theater of
Operations (ETO) on 11 April 1944.  He received campaign participation
credit for four campaigns – Northern France, Rhineland, Ardennes, Central
Europe.  He returned to the United States on 2 August 1945 and was
honorably separated on 17 October 1945.

5.  The applicant's WD AGO Form 53-55 shows that he was awarded the Good
Conduct Medal and the European-African-Middle Eastern Campaign Medal.  Item
34 (Wounds Received in Action) states "None."  Item 40 (Reason and
Authority for Separation) states "Convenience of the Government
(Demobilization) AR 615-365."

6.  The VA form awarding the applicant a disability pension does not state
that he was wounded in action.  It provides an $11.50 monthly pension for
"healed scars left cheek and forehead."

7.  Army Regulation (AR) 600-8-22 (Military Awards) sets forth Department
of the Army criteria, policy and instructions concerning individual
military awards, the Good Conduct Medal, service medals and service
ribbons, combat and special skill badges and tabs, unit decorations, and
trophies and similar devices awarded in recognition of accomplishments.  It
states:

      a.  The Purple Heart (PH) is awarded for a wound sustained as a
result of hostile action.  Substantiating evidence must be provided to
verify that:  (1) the wound was the result of hostile action; (2) the wound
required medical treatment; and (3) the medical treatment was made a matter
of official record.

      b.  The World War II Victory Medal (WWII Victory Medal) is awarded
for service between 7 December 1941 and 31 December 1946, both dates
inclusive.

      c.  A bronze service star based on qualifying service, is awarded 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.

8.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign
Participation Credit Register) lists the unit awards received by units
serving in Vietnam.  This document shows the unit to which the applicant
was assigned was cited for award of the Army of Occupation Medal with
Germany Clasp for occupation duty in Germany from 30 May 1945 to 5 July
1945.

9.  Records show the applicant should have discovered the error 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.
Therefore, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's service records are not available.  His WD AGO Form 53-
55 clearly states that he was not wounded in action.

2.  The applicant's VA disability pension does not elaborate on the nature
of his disability condition other than to say it involved war service and
healed scars to the cheek and forehead.  There is no mention as to how the
applicant received the scars.

3.  In order to be eligible for award of the Purple Heart, the applicant
must be able to show a copy of orders awarding the decoration, or be able
to prove that he was wounded as a result of hostile action (not injured
during military service), and that the wound was treated and made a matter
of record in his service medical documents.  The applicant has not produced
an order or medical records documenting his wounding.

4.  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

__js____  __slp___  __cg____  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 by:

      a.  Deleting the European-African-Middle Eastern Campaign Medal from
his WD AGO Form 53-55; and

      b.  Adding the European-African-Middle Eastern Campaign Medal with
four bronze service stars, the World War II Victory Medal, and the Army of
Occupation Medal with Germany Clasp.



                                        John Slone
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040001627                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050412                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107.0015                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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