RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           26 July 2005
      DOCKET NUMBER:  AR20040010242


      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. Linda Simmons                 |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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 was never awarded the PH for
shrapnel wounds he received as a result of enemy action.

3.  The applicant provides the following documents in support of his
application:  Self-Authored Affidavit, Separation Document (WD AGO Form 53-
55),
18 February 1947 Doctor’s Statement, 3 September 1947 Request for Army
Information (VA Form 3101), and 15 September 1948 Michigan Medical Service
Authorization for Treatment or Examination.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 31 March 1946.  The application submitted in this case is
dated
9 November 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) and the supporting
documents he provides with his application.

4.  The applicant’s WD AGO Form 53-55 shows he was inducted into the Army
and entered active duty on 18 July 1944.  He continuously served on active
duty for 1 year, 8 months and 14 days until being honorably separated on 31
March 1946.  The separation document also shows he served in the European
Theater of Operations (ETO) and participated in the Ardennes, Rhineland and

Central Europe campaigns of World War II (WWII).

5.  Item 31 (Military Qualifications) of the applicant’s WD AGO Form 53-55
contains an entry confirming he earned the Combat Infantryman Badge (CIB);
and Item 33 (Decorations and Citations) shows he earned the European-
African-Middle Eastern Campaign Medal, Army Good Conduct Medal and WWII
Victory Medal during his active duty tenure.  The applicant authenticated
the WD AGO Form 53-55 with his signature in Item 56 (Signature of Person
Being Separated).

6.  The applicant provides a VA Form 3101, dated 3 September 1947.  This
document shows that the military medical records provided to the Department
of Veterans Affairs (VA) at that time showed the applicant was treated for
a
non-battle related case of trench foot.  The document contained no
information regarding shrapnel wounds, or any other combat related
wound/injury.

7.  The applicant also provides a doctor’s statement, dated 18 February
1947.  It states that the applicant was examined and had a history of
trench foot, which he received during the Battle of the Bulge in 1945.

8.  The applicant further provides a pension related examination treatment
record from the Michigan Medical Service, dated 15 September 1948.  This
form indicates the applicant told the examining physician he was knocked
unconscious and fell into a shell hole on 19 January 1945.  He further
informed the doctor he remained in and out of an unconscious state for
about 3 days.  The final examination contained doctor’s remarks that
included a statement that clinically the examination was negative for
pathology in his back.  The listed diagnosis indicated no muscle atrophy or
nerve changes to the back; trench foot, bilaterally and varicose veins
involving both lower extremities.  The document also contained no
information regarding shrapnel wounds, or any other combat related
wound/injury.

9.  An NPRC Letter, dated 1 August 2003, verified the applicant’s
entitlement to the Bronze Star Medal based on his having earned the CIB
during World War II, and to the Sharpshooter Qualification Badge with Rifle
Bar, which had not been included on his separation document.

10.  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.

11.  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.

12.  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 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 a direct result of,
or was caused by enemy action.

2.  The medical documents provided by the applicant confirm he suffered
from non-battle related injuries for which he was treated while still on
active duty.  However, none of these documents contain any information
indicating that he received shrapnel wounds, or any other combat related
wound/injury while he was on active duty.

3.  The veracity of the applicant’s claim of entitlement to the PH is not
in question.  However, absent any corroborating evidence confirming he
received a wound/injury as a direct result of, or that was caused by enemy
action, the regulatory burden of proof necessary to support award of the PH
has not been satisfied in this case.

4.  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 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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 March 1946.  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.

6.  The record does show that based on his having earned the CIB,
the applicant is entitled to the BSM.  He also earned the Sharpshooter
Qualification Badge with Rifle Bar, and based on his World War II service
and campaign participation in the ETO, he is entitled to 3 bronze service
stars with his European-African-Middle Eastern Campaign Medal.

7.  The omission of the awards identified in the preceding paragraph from
the applicant’s record and 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

___LDS _  ___PHM_  ___LGH _  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 related to award
of the Purple Heart.

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, European-
African-Middle Eastern Campaign Medal with 3 bronze service stars and
Sharpshooter Qualification Badge with Rifle Bar; and by providing him a
corrected separation document that includes these awards.




            ____Linda D. Simmons  __
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040010242                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/07/26                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1946/03/31                              |
|DISCHARGE AUTHORITY     |AR 615-365                              |
|DISCHARGE REASON        |Demobilization                          |
|BOARD DECISION          |DENY with Adm Note                      |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  61   |107.0015                                |
|2.  46                  |107.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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