RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 August 2005
      DOCKET NUMBER:  AR20040011514


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Linda M. Barker               |     |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 correction of his records to show award of the
Purple Heart.

2.  The applicant states, in effect, that he was wounded in mid December
1944 during the Battle of the Bulge by enemy shelling that affects his legs
and back to this day.  He further states that his paperwork was lost or
destroyed.

3.  The applicant provides seven letters of support from former fellow
Soldiers of his unit; a letter from Congressional Representative, dated 19
August 1991; and pages 2 and 3 of a VA Form 8-526.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 9 January 1946.  The application submitted in this case is
dated 22 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 in 1973.  It is believed that the
applicant’s records were lost or destroyed in that fire.  However, this
case is being considered using reconstructed records, which primarily
consist of his WD AGO Form 53-55 (Enlisted Record and Report of Separation-
Honorable Discharge).

4.  The applicant's WD AGO Form 53-55 with the ending period 9 January 1946
shows he was inducted and entered active duty on 29 January 1943.  The
applicant served in the European Theater of Operations from 27 April 1944
through 22 December 1945.  Records show that while he served in Europe he
was assigned to B Battery, 546th Antiaircraft Artillery Battalion.  He was
honorably separated on 9 January 1946.

5.  Item 33 (Decorations and Citations) shows the applicant was awarded the
European-African-Middle Eastern Theater Campaign Ribbon with 4 bronze
service stars, the American Theater Medal, the Army Good Conduct Medal, and
the World War II Victory Medal.  Item 34 (Wounds Received in Action)
contains the entry "NONE."

6.  There are no General Orders in the applicant's records that show he was
awarded the Purple Heart.

7.  WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel
Prior to Discharge, Release from Active Duty or Retirement), dated 8
January 1946 shows that the applicant was being separated.  Item 11 (List
all significant diseases, wounds, and injuries) shows that he indicated "No
physical complaints."

8.  The applicant submitted seven letters of support from former fellow
Soldiers assigned to his unit (all dated 1990).  The letters have the same
statement with different signatures except one that has a hand written note
by the author.   The authors all certified, in effect, that in mid December
1944 the applicant's unit came under attack from shelling while he was
laying in bed.  The applicant had to leap from a window to escape the
bombing.  Soon after the attack he started having spasms in his back and
legs.  The authors confirmed that the applicant was treated for his
injuries.

9.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign
Participation Credit Register) lists the unit awards and campaign
participation credit received by units serving during World War II.  This
document shows that the 546th Antiaircraft Artillery Battalion was awarded
occupation credit for Germany for the period 2 May 1945 through 19 May
1945.



10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent
part, that the Army of Occupation Medal is awarded for service of 30
consecutive days at a normal post of duty in a qualifying location.  For
Germany, service must have been between 9 May 1945 and 5 May 1955 and the
European-African-Middle Eastern Campaign Medal (formerly designated a
Theater Ribbon) must have been awarded prior to 9 May 1945.

11.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple
Heart 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 must have required treatment, and the
medical treatment must have been made a matter of official record.  When
contemplating an award of this decoration, the key issue that commanders
must take into consideration is the degree to which the enemy caused the
injury.  The fact that the proposed recipient was participating in direct
or indirect combat operations is a necessary prerequisite, but is not sole
justification for award.  This regulation also provides that there is no
statute of limitations on requests for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  There are no orders in the applicant's service personnel records that
show he was awarded the Purple Heart.  The seven letters of support
submitted by former fellow Soldiers in behalf of the applicant are not
eyewitness accounts of the alleged injury, although they confirmed the
applicant leaped from a window and was later treated for spasms.

2.  At this late date the Board will not substitute its judgment for that
of the commander at the time who may have determined the enemy was not the
cause of the applicant's injuries to a sufficient degree to warrant the
Purple Heart.

3.  Therefore, there is insufficient basis for award of the Purple Heart in
this case.

4.  The applicant met the eligibility criteria for award of the Army of
Occupation Medal with Germany clasp.  This award should be added to his WD
AGO Form 53-55.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 January 1946.  However, the ABCMR
was not established until 2 January 1947.  Therefore, the time for the
applicant to file a request for correction of any error or injustice
expired on 1 January 1950.
Although the applicant did not file within the ABCMR's statute of
limitations, it is appropriate to waive failure to timely file in this case
based on the fact there is no statute of limitations on requests for award
of the Purple Heart.

6.  Evidence shows that the applicant’s records contain administrative
errors which do not require action by the Board.  Therefore, administrative
correction of the applicant's records will be accomplished by the Case
Management Support Division (CMSD), St. Louis, Missouri, as outlined by the
Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section
below.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_ MKP __  _  REB __  __ LMB _   DENY APPLICATION

 BOARD DETERMINATION/RECOMMENDATION:

1.  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.  The Board determined that administrative errors in the records of the
individual concerned should be corrected.  Therefore, the Board requests
that the CMSD-St. Louis administratively correct the records of the
individual concerned to show award of the Army of Occupation Medal with
Germany clasp.




                                  ___ Margaret K. Patterson _
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011514                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |25 August 2005                          |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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