RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           29 March 2005
      DOCKET NUMBER:  AR20040003525


      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          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Ms. Susan A. Powers               |     |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 received a shell fragmentation
wound (SFW) to the ankle during his World War II (WW II) service.

3.  The applicant provides a third-party statement and separation document
(WD AGO Form 53-55) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 22 September 1945.  The application submitted in this case
is dated 25 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 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 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.  This case is being
considered using reconstructed records, which primarily consist of the
applicant’s separation document.

4.  The applicant’s WD AGO Form 53-55 shows he was inducted into the Army
and entered active duty on 23 November 1942.  It also shows that he served
in the European Theater of Operations (ETO) 24 February 1944 through
sometime in August 1945, and was credited with participating in the
Normandy, Northern France, Ardennes, Rhineland and Central Europe
campaigns.

5.  The WD AGO Form 53-55 also shows that the applicant served with
Battery C, 108th Field Artillery Battalion and that he earned the European-
African-Middle Eastern Campaign Medal, Army Good Conduct Medal and Bronze
Star Medal.  6.  Item 34 (Wounds Received in Action) contains the entry
“None” and the applicant authenticated the separation document with his
signature in Item 56 (Signature of Person Being Separated).

6.  The applicant provides a third-party statement from an individual that
states that sometime following the Allied invasion of France, he heard the
applicant was hit with shrapnel.  He further states that the applicant was
not in his gun crew, but with his unit.

7.  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.

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

9.  Paragraph 5-12 of the awards regulation contains 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 and a
silver service star is used in lieu of 5 bronze service stars.

10.  Department of the Army Pamphlet 672-1 (Unit Campaign Participation
Credit Register-World War II) establishes the eligibility of individual
members for campaign participation credit, assault landing credit, and unit
citation badges awarded during World War II.  This source confirms that
during his tenure of assignment, the applicant’s unit (Battery C, 108th
Field Artillery Battalion) was awarded the Army of Occupation Medal with
Germany Clasp.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH and the supporting
documents he provides were carefully considered.  However, by regulation,
in order to support awarding a member the PH, it is necessary to establish
that a member was wounded or injured in action, that the wound required
medical treatment, and that the medical treatment was made a matter of
official record.

2.  The evidence is void of any indication 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 53-55 contains the entry “None”
in Item 34 (Wounds Received In Action).  This entry indicates the applicant
never sustained a wound/injury as a direct result 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 34 entry, was correct at the time the document was
prepared and issued.

3.  The veracity of the applicant’s claim that he received a SFW to his
ankle and of the information contained in the third-party statement he
provided are not in question.  However, absent any evidence of record to
corroborate that the applicant sustained and/or 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 related to award of the PH now under consideration on 22
September 1945.  Therefore, based on the date the Board was established, 2
January 1947, the time for him 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 WW II service and campaign
participation in the ETO, the applicant is entitled to the World War II
Victory Medal, Army of Occupation Medal with Germany Clasp and 1 silver
service star with his European-Africa-Middle Eastern Campaign Medal.  The
omission of these awards from his WD AGO Form 53-55 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

___MM__  ___PM __  ___SP __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice related to award of the
Purple Heart.  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 did determine that there were administrative errors in the
record of the individual that 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, Army of Occupation Medal with Germany Clasp and 1 silver
service star with his European-Africa-Middle Eastern Campaign Medal; and by
providing him a corrected separation document that includes these awards.





            ____Melvin H. Meyer_____
                    CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040003525                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/29                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1945/09/22                              |
|DISCHARGE AUTHORITY     |AR 615-365                              |
|DISCHARGE REASON        |Demobilization                          |
|BOARD DECISION          |DENY with Admin Note                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  62   |107.0015                                |
|2.  46                  |107.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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