RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          30 June 2005
      DOCKET NUMBER:  AR20040008417


      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:

|     |Ms. Melinda M. Darby              |     |Chairperson          |
|     |Mr. Thomas E. O’Shaughessy        |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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, he was never awarded the PH based on
the action which resulted in his being awarded the Silver Star (SS).

3.  The applicant provides a copy of the orders awarding him the SS in
support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 28 November 1945.  The application submitted in this case
is dated
29 September 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 (NPRC) 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 that primarily consist of the
applicant’s separation document (WD AGO Form 53-55), Final Payment Work
Sheet (WD Form 372A) and Headquarters, 70th Infantry Division General
Orders (GO)
Number (#) 101, dated 16 August 1945.

4.  The applicant’s WD AGO Form 53-55 shows he was inducted into the Army
and entered active duty on 26 April 1944.  He continuously served until
being honorably separated on 28 November 1945.  It also shows he served in
the European Theater of Operations (ETO) and participated in the Central
Europe and Rhineland campaigns.
5.  Item 31 (Military Qualifications) of the applicant’s WD AGO Form 53-55
shows he earned the Combat Infantryman Badge (CIB) and Item 33 (Decorations
and Citations) shows he earned the SS.  Item 34 (Wounds Received in Action)
contains the entry “None” and the PH is not included in the list of awards
included in the separation document.  The applicant authenticated his
separation document with his signature in Item 56 (Signature of Person
Being Separated).

6.  The copy of Headquarters, 70th Infantry Division GO # 101 provided by
the applicant confirms he was awarded the SS for gallantry in action on 2
January 1945, while serving in France.  The citation included in these
orders, while attesting to the applicant’s heroic deeds of 2 January 1945,
makes no mention of his having sustained a wound during this action.

7.  An NPRC Letter, dated 20 May 2004, verified the applicant’s entitlement
to the Bronze Star Medal based on his having earned the CIB during World
War II.

8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part,
that the Purple Heart (PH) 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 required medical
treatment; and the medical treatment was made a matter of official record.


9.  Paragraph 3-13 of the awards regulation outlines the criteria for award
of the BSM.  It states, in pertinent part, that the BSM is authorized to
members of the Armed Forces of the United States who, after 6 December
1941, were 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.  This paragraph also stipulates that for this purpose, an
award of the CIB is considered as a citation in orders.

10.  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.

11.  Paragraph 5-12 of the same regulation contains guidance on award of
the European-African-Middle Eastern Campaign Medal.  It states, in
pertinent part, that it is awarded for service in the ETO between 7
December 1941 and
8 November 1945, and 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 supporting
statement he provided were carefully considered.  However, by regulation,
in order to support award of the PH there must be evidence that the wound
or injury on which the award is based was received as enemy action, that
the wound required medical treatment, and that the medical treatment was
made a matter of official record.

2.  The evidence in this case includes a WD AGO Form 53-55 that contains an
entry in Item 34 that indicates the applicant was never wounded/injured as
a result of combat action.  The applicant authenticated this document with
his signature.  His signature confirms he verified that the information
contained on the separation document, to include list of awards and the
Item 34 entry, was correct at the time the document was prepared and
issued.

3.  The veracity of the applicant’s claim of entitlement to the PH is not
in question.  However, the SS orders he submits, while confirming his
heroic deeds of 2 January 1945, provide no information indicating he was
wounded during this action.  Thus, absent any evidence to corroborate that
he was wounded/injured in action, or that he 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 28 November 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 failed to 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 record does show that based on his having earned the CIB,
 the applicant is entitled to the BSM.  It further shows 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 European-African-Middle Eastern
Campaign Medal with 2 bronze service stars.  The omission of these awards
from his separation document is an administrative matter that does not
require Board action to correct.  Thus, administrative correction of his
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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MMD_  ___TEO_  ___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 his entitlement to the Bronze Star Medal, World War II
Victory Medal and
European-African-Middle Eastern Campaign Medal with 2 bronze service stars;
and by providing him a corrected separation document that includes these
awards.




            ____Melinda M. Darby____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040008417                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/06/30                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1945/11/28                              |
|DISCHARGE AUTHORITY     |AR 615-365                              |
|DISCHARGE REASON        |Demobilization                          |
|BOARD DECISION          |DENYwAdmNote                            |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  61   |107.0061                                |
|2.  46                  |107.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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