RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           10 June 2004
      DOCKET NUMBER:   AR2004100280


      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             |
|     |Ms. Wanda L. Waller               |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Melvin Meyer                  |     |Chairperson          |
|     |Mr. Joe Schroeder                 |     |Member               |
|     |Mr. Robert Duecaster              |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 award of the Purple Heart.

2.  The applicant states that while engaged in combat actions in the
Ardennes Forest in France he sustained a shrapnel wound to his right knee
from an enemy round that was an air burst.  He contends that the Veterans
Affairs (VA) awarded him a service connected disability rating based on his
injuries in combat during World War II.

3.  The applicant provides a copy of his WD AGO Form 53-55 (Enlisted Record
and Report of Separation); a letter from the VA, dated 21 November 1950; a
letter, dated 14 October 2003; and a letter, dated 6 October 2003, from the
National Personnel Records Center in St. Louis, Missouri.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
5 November 1945.  The application submitted in this case is dated 14
October 2003.

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 limitation 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.

4.  The applicant was inducted on 20 July 1942 and entered active duty on
3 August 1942.  He served as a light truck driver in the European Theater
of Operations from 7 July 1944 until approximately November 1945.  On
5 November 1945, the applicant was honorably discharged.

5.  Item 6 (Organization) on the applicant’s WD AGO Form 53-55 shows he was
assigned to Headquarters Battery, 62nd Armored Field Artillery Battalion.
His WD AGO Form 53-55 shows the European-African-Middle Eastern Campaign
Medal with four bronze service stars, the Good Conduct Medal, the World War
II Victory Medal, and the American Defense Service Medal as authorized
awards.  Item 34 (Wounds Received in Action) on his WD AGO Form 53-55 shows
the entry, "NONE."

6.  There is no evidence in the available records that shows the applicant
was awarded the Purple Heart or was wounded as a result of hostile action
during World War II.

7.  In support of his claim, the applicant provided a letter, dated 21
November 1950, from the VA which shows that service connection was
established for a “scar, 1 1/2 inch, shell fragment wound, right knee.”

8.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign
Participation Credit Register), dated 6 July 1961, shows, among other
information, unit awards and citations authorized for units which served
during World War II.  This document shows the applicant's unit received
occupation credit for Germany for the period 2 May to 30 September 1945.

9.  Army Regulation 600-8-22 (Military Awards) 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.

10.  Army Regulation 600-8-22 provides, in pertinent part, that the Army of
Occupation Medal is awarded for service of thirty consecutive days at a
normal post of duty in a qualifying location.  Personnel at a qualifying
location as an inspector, courier, escort, temporary or detached duty are
precluded from eligibility.  For award of the Army of Occupation Medal with
Germany Clasp, qualifying service must have occurred between 9 May 1945 and
5 May 1955 and the European-African-Middle Eastern Campaign Medal must have
been awarded prior to 9 May 1945.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of orders or other evidence of record showing that the
applicant was injured or treated for wounds as a result of hostile action
during World War II, the VA letter provided in support of his claim for
award of the Purple Heart is not sufficient as a basis for award of the
Purple Heart.  Therefore, there is insufficient evidence on which to base
award of the Purple Heart in this case.




2.  The applicant's unit received occupation credit for Germany which
entitles him to award of the Army of Occupation Medal with Germany Clasp.


3.  Records show the applicant should have discovered the alleged error now
under consideration on 5 November 1945; therefore, the time for the
applicant to file a request for correction of any error or injustice
expired on 1 January 1950
(3 years after the Board was established on 2 January 1947).  However, the
applicant 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 timely file in this case.

4.  Evidence shows that the applicant’s records contain an administrative
error which does 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 3 of the BOARD
DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

MM_____  JS_____  RD________  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 an administrative error 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 that he was awarded the Army of Occupation
Medal with Germany Clasp.



            _Melvin Meyer_________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100280                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040610                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107.0015                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |