RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           26 July 2005
      DOCKET NUMBER:  AR20040010260


      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 D. 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, he was wounded in action on 3 October
1944, but this fact is not indicated on his separation document (WD AGO
Form 53-55).

3.  The applicant provides a copy of his 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 12 June 1945.  The application submitted in this case is
dated
28 October 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.  This
case is being considered using reconstructed records that primarily consist
of the applicant’s separation document (WD AGO Form 53-55).

4.  The applicant’s WD AGO Form 53-55 shows he enlisted in the Army and
entered active duty on 2 February 1940.  He continuously served on active
duty for 5 years, 4 months and 11 days until being honorably separated on
12 June 1945.  The separation document also shows he served in the Pacific
Theater of Operations (PTO) from 29 April 1940 through 20 February 1943 and
in the European Theater of Operations (ETO) from 27 June 1944 through about

7 March 1946.

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 with 1 bronze service star, Asiatic-
Pacific Campaign Medal with 1 bronze service star and American Defense
Service Medal with 1 bronze service star.  The PH is not included in this
list of awards.

6.  Item 34 (Wounds Received in Action) of the applicant’s WD AGO Form 53-
55 contains an entry indicating he was wounded in action in the ETO on 3
October 1944.  The applicant authenticated the WD AGO Form 53-55 with his
signature in Item 56 (Signature of Person Being Separated).

7.  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.


8.  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.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH was carefully
considered.  However, by regulation, in order to support award of the PH
there must be evidence that the wound or injury upon 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
Item 34 entry that indicates the applicant was wounded in action in the ETO
on
3 October 1944.  However, there are no medical treatment records on file,
and the applicant fails to provide any medical documents showing he was
ever treated for a combat related wound/injury.  Further, the PH is not
included in the list of awards contained in Item 33 of the separation
document, which should have been expected had the wound referred to in Item
34 authorized the award of the PH.  The applicant authenticated the WD AGO
Form 53-55 with his signature on the date of his separation.

3.  The applicant’s signature on the WD AGO Form 53-55, in effect, was his
verification that information contained on the separation document, to
include the list of awards, was correct at the time the document was
prepared and issued.

4.  Although the veracity of the applicant’s claim that he was wounded in
action is not in question, absent any corroborating documentary evidence
confirming military medical personnel treated him for a wound/injury that
he received 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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 June 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.

6.  The record does show that based on his having earned the CIB,
the applicant is entitled to the BSM.  Further, based on his World War II
service, he is entitled to the World War II Victory Medal.  The omission of
these awards 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 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 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 and World War II
Victory Medal; and by providing him a corrected separation document that
includes these awards.




            ____Linda D. Simmons___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040010260                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/07/26                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1945/06/12                              |
|DISCHARGE AUTHORITY     |AR 615-365                              |
|DISCHARGE REASON        |Demobilization                          |
|BOARD DECISION          |DENY with Admin Note                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  61   |107.0015                                |
|2.  46                  |107.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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