RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           4 August 2005
      DOCKET NUMBER:  AR20040011246


      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. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Kenneth L. Wright             |     |Member               |
|     |Mr. Patrick H. McGann             |     |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 by flying glass when a
robot bomb hit his building in Liege, Belgium.  He claims others in the
room with the same wounds received the PH.

3.  The applicant provides the following documents in support of his
application:  Separation Document (WD AGO Form 53-55), Self-Authored War
Diary Extracts, Letter to Father, Unit History-January 1945, 2 Third-Party
Witness Statements and Department of the Air Force Letter on PH Award.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 2 November 1945.  The application submitted in this case
was received on 19 December 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.  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 consists of the applicant’s
separation document and the documents he submitted.

4.  The applicant’s WD AGO Form 53-55 shows he enlisted in the Army and
entered active duty on 9 November 1942.  He continuously served until being
honorably separated on 2 November 1945.

5.  The separation document also shows the applicant served in the European
Theater of Operations (ETO) from 16 October 1943 through 18 October 1945,
and that he participated in the Ardennes, Central Europe, Normandy,
Northern France and Rhineland campaigns.

6.  Item 33 (Decorations and Citations) of the applicant’s WD AGO Form 53-
55 shows he earned the American Campaign Medal, European-African-Middle
Eastern Campaign Medal and Army Good Conduct Medal.  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).

7.  The applicant provides extracts of his diary for 22 through 28 December
1944. The entry for the 28th indicates a robot bomb hit his quarters, but
except for a few cuts from glass no one in his room was hurt.  He later
indicates that he went back to the room after the attack to get clothes and
received an injury to his leg, and received some cuts to the hand.  He
further provides a letter he wrote to his father on 25 May 1945.  In this
letter, he recounts the robot bomb incident, and again indicates he
received a few cuts to his hands, but that no one in his room was injured.


8.  The applicant also submits a unit history report for the month of
January 1945, which includes a list of members of the unit who received the
PH on 23 January 1945, and two third-party statements from individuals who
indicate they were his roommates at the time of the robot bomb incident.
Both individuals indicate they noticed the applicant had received cuts to
his hands from flying glass during the robot bomb incident.
9.  The further provides a letter from the United States Air Force
Personnel Center to a member of the Army Air Force who was assigned to his
unit.  This document indicates a PH review board determined this individual
was entitled to the PH.

10.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and
criteria concerning individual military awards.  Paragraph 2-8 contains the
regulatory guidance pertaining to awarding the PH.  It states, in pertinent
part, that in order to award a PH there must be evidence that a member was
wounded or injured as a result of enemy action.  The wound or injury for
which the PH is being awarded must have required treatment by a medical
officer, this treatment must be supported by medical treatment records that
were made a matter of official record.

11.  Paragraph 5-11 of the awards regulation contains guidance on award of
the World War II Victory Medal.  It states, in pertinent part, that it is
authorized for service between 7 December 1941 and 31 December 1946.

12.  Paragraph 5-12 of the awards regulation contains guidance on 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.  A silver
service star is used in lieu of five bronze service stars to denote
participation in five campaigns.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH and the supporting
evidence he provided were carefully considered.  However, by regulation, in
order to support award of the PH, there must be evidence a member was
wounded/injured in action, was treated for the wound/injury by military
medical personnel and a record of this medical treatment must have been
made a matter of official record.

2.  The veracity of the applicant’s claim that he received cuts from glass
and injured his leg while serving during World War II is not in question.
However, notwithstanding the third-party supporting statements and other
documents he provided, by the applicant’s own admission at the time, as
documented in his diary and in the letter to his father, no one in his room
was injured.

3.  Absent any evidence showing the applicant was treated for a combat
related wound by military medical personnel, or that members of his chain
of command at the time believed the injuries in question supported award of
the PH, the regulatory burden of proof necessary to support award of the PH
has not been satisfied in this case.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement regarding the PH issue
under consideration.

5.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH now under consideration on 2 November
1945.  Therefore, based on the date the Board was established, 2 January
1947, the time for the applicant 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.

6.  The evidence does show that based on his World War II service, and his
campaign participation in the ETO, the applicant is entitled to the World
War II Victory Medal, and to 1 silver service star with his European-
African-Middle Eastern Campaign Medal.

7.  The omission of the awards outlined in the preceding paragraph from
the applicant’s record and separation document is an administrative matter
that does not require Board action to correct.  Therefore, the Case
Management Support Division (CMSD), St. Louis, Missouri will make the
necessary administrative correction 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

___BJE__  ___KLW_  ___PHM_  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 World War II Victory Medal and 1
silver service star with his European-African-Middle Eastern Campaign
Medal; and by providing him a corrected separation document that includes
these awards.




            ____Barbara J. Ellis______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040011246                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/08/09                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1945/11/02                              |
|DISCHARGE AUTHORITY     |AR 615-365                              |
|DISCHARGE REASON        |Demobilization                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  61   |107.0015                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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