RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            22 June 2004
      DOCKET NUMBER:   AR2004101168


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Jose A. Martinez              |     |Member               |
|     |Mr. Lawrence Foster               |     |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 that his WD AGO Form 53-55 (Enlisted Record and
Report of Separation) be corrected to add the Purple Heart with cluster
(i.e., the Purple Heart with First Oak Leaf Cluster) and the Bronze Star
Medal.

2.  The applicant makes no additional statement.

3.  The applicant provides his Honorable Discharge Certificate; his WD AGO
Form 53-55; a document, dated 22 April 1945, subject:  Certificate of
Eligibility for Award of Purple Heart Cluster; a certificate of award of
the Bronze Star Medal; and two sets of Headquarters, 8th Armored Division
General Orders Number     23 dated 2 May 1945.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors which occurred
on      4 December 1945.  The application submitted in this case is dated
22 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 enlisted on 17 April 1942.  He arrived in the European-
African-Middle Eastern Theater of Operations (EAMETO) on 19 November 1945.

5.  The applicant provides a document dated 22 April 1945 from the
Battalion Surgeon, Headquarters, 58th Armored Infantry Battalion.  The
document stated that the applicant was treated by the Battalion Surgeon on
18 April 1945 for a wound of the right thigh and right hand sustained while
in action against the enemy.  It was the Battalion Surgeon's opinion "that
this enlisted man is entitled to the award of the Purple Heart Cluster as
directed by paragraph I6 (sic), AR 600-45."
6.  Headquarters, 8th Armored Division General Orders Number 23 dated 2 May
1945 awarded the applicant the basic Purple Heart for wounds received on
     6 April 1945.

7.  The applicant departed the EAMETO on 22 November 1945 and separated on
4 December 1945.  His WD AGO Form 53-55 shows he participated in three
campaigns and that he was awarded the Combat Infantryman Badge, the Purple
Heart (based on Headquarters, 8th Armored Division General Orders Number
23 dated 2 May 1945), the Army Good Conduct Medal, the EAMETO Medal
(currently designated the European-African-Middle Eastern Campaign Medal),
the American Theater of Operations Medal (currently designated the American
Campaign Medal); and the World War II Victory Medal.

8.  Item 34 (Wounds Received in Action) of the applicant's WD AGO Form 53-
55 shows he was wounded once, on 6 April 1945.

9.  On 10 July 1997, the applicant was issued a certificate awarding him
the Bronze Star Medal for meritorious achievement in ground combat against
the armed enemy during World War II.

10.  Army Regulation 600-45 (Decorations) governed award of the Purple
Heart at the time.  Paragraph 16 (not "I"6) stated that the Purple Heart
was awarded for a wound sustained as a result of hostile action provided
such wound necessitated treatment by a medical officer.  One award (the
Purple Heart for the first wound and an Oak Leaf Cluster thereafter) was
authorized for each such wound.

11.  Army Regulation 600-8-22 (Military Awards) is the current regulation
governing individual military decorations and service awards.  In pertinent
part,   it authorizes award of the European-African-Middle Eastern Campaign
Medal    for qualifying service in the EAMETO.  Army Regulation 600-8-22
also authorizes a bronze service star, based on qualifying service, for
each campaign listed in Appendix B of this regulation and states that
authorized bronze service stars will be worn on the appropriate campaign or
service medal including the European-African-Middle Eastern Campaign Medal.


12.  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.  For Germany, service must
have been 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.

13.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign
Participation Credit Register) lists the unit awards received by units
serving during World War II.  This document shows that the 58th Armored
Infantry Battalion was awarded occupation credit for Germany for the period
2 May through 4 July 1945.

14.  Army Regulation 600-8-22 provides for the award of the Bronze Star
Medal to any person who distinguished himself or herself by heroic or
meritorious achievement or service, not involving participation in aerial
flight, in connection with military operations against an armed enemy.  It
also provides for award of the Bronze Star Medal to members of the armed
forces who, after 6 December 1941 and prior to 3 September 1945, have been
cited in orders or in a formal certificate for meritorious or exemplary
conduct in ground combat against the armed enemy.  A citation in orders for
the Combat Infantryman Badge or Medical Badge awarded in the field during
the period of actual combat against the armed enemy is considered as a
citation for exemplary conduct in ground combat.

DISCUSSION AND CONCLUSIONS:

1.  The document, subject: Certificate of Eligibility for Award of Purple
Heart Cluster, has been carefully considered.  However, it is insufficient
evidence to show that the applicant had been wounded a second time or that
the wound treated by the Battalion Surgeon on 18 April 1945 was not the
same wound sustained by the applicant on 6 April 1945.  It is noted that
the other evidence provided by the applicant, the general orders dated 2
May 1945, show he was awarded the basic Purple Heart for wounds received on
6 April 1945.  Those wounds, and the Purple Heart for those wounds, are
already listed on his WD AGO Form 53-55.

2.  The applicant had been awarded the Combat Infantryman Badge and in 1997
was awarded the Bronze Star Medal based upon his award of the Combat
Infantryman Badge.  His WD AGO Form 53-55 should be administratively
amended accordingly.

3.  The applicant participated in three campaigns and is authorized to wear
three bronze service stars on the European-African-Middle Eastern Campaign
Medal.  His unit was awarded occupation credit for Germany and he is
therefore authorized to wear the Army of Occupation Medal with Germany
clasp.  His     WD AGO Form 53-55 should be administratively amended
accordingly.

4.  Records show the applicant should have discovered the alleged  error  or
injustice now under consideration on  4  December  1945,  the  date  of  his
separation from active duty.  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.
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.
5.  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 3 of the BOARD DETERMINATION/RECOMMENDATION section
below.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jns___  __jam___  __lf____  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 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 by amending his WD AGO Form 53-55 to add the Bronze
Star Medal and the Army of Occupation Medal with Germany clasp and to show
he is authorized to wear three bronze service stars on the European-African-
Middle Eastern Campaign Medal.




            __John N. Slone______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004101168                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040622                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |