RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 October 2005
      DOCKET NUMBER:  AR20050001239


      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. Prevolia A. Harper            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ted S. Kanamine               |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 and the Combat Infantryman Badge.

2.  The applicant states that a DA Form 1577 (Authorization for Awards)
fails to list all of his authorized awards and that he also should have
been awarded the Purple Heart.

3.  The applicant provides a statement pertaining to his request for
awards, a letter of support, and copies of various morning reports from
World War II.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 26 November 1945.  The application submitted in this case
is dated 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 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.  This case is
being considered using reconstructed records, which primarily consist of
the applicant’s WD AGO Form 53-55, Surgeon General Hospital Reports, and
Morning Reports.

4.  The applicant’s WD AGO Form 53-55 (Enlisted Record and Report of
Separation-Honorable Discharge) shows he was inducted into the Army on
22 November 1942 and entered active duty on 29 November 1942.  It also
shows he served in the European-African-Middle Eastern Theater of
Operations (EAMETO) from 11 October 1944 through 22 October 1945.  The
record contains no indication that the applicant was ever wounded in action
or that he was ever recommended for or awarded the Purple Heart.

5.  On 26 November 1945, the applicant was honorably separated from active
duty.  The separation document (WD AGO Form 53-55) he was issued at the
time confirms he completed a total of 2 years, 11 months and 29 days of
active military service.  Item 30 (Military Occupational Specialty) shows
the applicant served in the military occupational specialty (MOS) 506
(Gunner).  Item 32 (Battles and Campaigns) contains the entry “Unknown.”

6.  Item 34 (Wounds Received In Action) of the applicant’s WD AGO Form 53-
55 contains the entry “None” and Item 33 (Decorations and Citations) shows
that he earned the World War II Victory Medal and the American Campaign
Medal during his active duty tenure.  The applicant authenticated this
document with his signature in item 54 (Signature of Person Being
Separated).

7.  The applicant’s WD AGO Form 53-55 shows he was granted a certificate of
disability for discharge based on Army Regulation 215-361 in effect at that
time.

8.  There are no General Orders in the available records supporting award
of the Purple Heart.  There is also no evidence in the applicant’s
available military records which show he was wounded or treated for wounds
as a result of hostile action.

9.  In response to inquires initiated by the applicant, the National
Personnel Records Center (NPRC) conducted searches of the unit morning
reports and sick reports for the applicant’s unit in the European Theater
of Operations (ETO).  This search produced records which show the applicant
was transferred to the 2nd Evacuation Hospital and that he suffered from
trench foot.  The applicant’s Veterans Affairs Officer was notified by
letter on 29 June 2001 that this search failed to show the applicant was
listed for award of the Purple Heart.

10.  The applicant’s record contains a DD Form 215 (Correction to DD Form
214, Certificate of Release or Discharge from Active Duty), dated 5 January
2001.  This document shows the applicant was awarded campaign credit for
Ardennes-Alsace, Rhineland, and Central Europe.  The applicant was also
awarded the Bronze Star Medal, the Combat Infantryman Badge, the Army Good
Conduct Medal, the Belgian Fourragere, and the EAME Campaign Medal with 3
bronze service stars.  On 5 January 2001, the Military Awards Branch (Total
Army Personnel Command) issued a DA Form 1577 which verified the
applicant’s entitlement to these awards.  The Purple Heart was not included
as one of the awards issued at that time.



11.  The applicant’s record contains hospital admission records from the
Office of The Surgeon General show the applicant was admitted to General
Hospital and treated for peripheral vascular disease [foot] and
psychoneurosis. The circumstances are shown as nontraumatic and the
causative agent was not found.  The final result is shown as
discharge/retirement for medical reasons but not for any residual
condition.  This document also shows the applicant’s condition was
considered in the line of duty and he was recommended for discharged based
on a disability.

12.  The applicant provided morning reports for the period November
1944 through January 1945.  However, these reports fail to show the
applicant was injured as the result of hostile action or that he suffered
from any condition related to combat.  These documents consistently show
the applicant suffered from trench foot.

13.  The applicant provided a statement in which he stated he was including
evidence which established the fact that he should have been awarded the
Purple Heart.  He explained that he received a concussion injury from a
buzz bomb on 17 November (year not stated).  The applicant also stated that
he should have been awarded the Combat Infantryman Badge as he carried an
infantry MOS and served with the 98th Division 394th Infantry while in
combat in the Ardennes Forest.

14.  The applicant provided a letter of support from an individual who
stated that she has known the applicant for a long period of time and that
it makes the applicant angry that he was unable to save those around him
during the war.  The individual further stated that she knows that his
medical records show that he had a problem with his nerves and was supposed
to get a rating.  She continued that the applicant never received a Purple
Heart.

15.  Army Regulation 600-45 dated 23 September 1943, change 4 dated 3 May
1944, provided for award of the Purple Heart to members of the armed forces
of the United States who were wounded in action against an enemy of the
United States, or as a direct result of an act of such enemy, provided such
wound necessitated treatment by a medical officer.  For the purpose of
awarding the Purple Heart, a wound was defined as an injury to any part of
the body from an outside force, element, or agent sustained as the result
of a hostile act of the enemy or while in action in the face of the enemy.
In connection with the definitions of "wound", the word "element" referred
to weather and permitted award to personnel severely frostbitten while
actually engaged in combat.  Trench foot would not be considered as
meriting award.
16.  Army Regulation 800-8-22 (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.

17.  Paragraph 5-10 of the awards regulation contains guidance on award of
the Army Occupation Medal.  It states, in pertinent part, that it is
awarded for the occupation of Germany for the period between 9 May 1945 and
5 May 1955.
It further indicates that service between 9 May and 8 November 1945 will be
counted only if the European-African-Middle Eastern Campaign Medal was
awarded for service before 9 May 1945.  The applicant’s unit, the 394th
Infantry Regiment, 99th Infantry Division, received occupation credit for
Germany for the period 2 May 1945 to 4 September 1945.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record and independent evidence provided by the
applicant fails to support his claim of entitlement to the Purple Heart.
By regulation, in order to support award of the Purple Heart, there must be
evidence showing that the Soldier was wounded or injured in action, that
the wound for which the award is being made required treatment by military
medical personnel and this treatment must have been made a matter of
official record.

2.  The morning reports submitted by the applicant show he suffered from
trench foot.  While the trench foot injury incurred by the applicant is
unfortunate, it does not meet the criteria for award of the Purple Heart
outlined in either the old or current regulation.  The information
contained in the morning reports are not supportive of the applicant’s
contention that he was injured as a result of enemy action.  Therefore
these documents are insufficient evidence upon which to base award of the
Purple Heart.

3.  Hospital Admission Cards created by the Office of The Surgeon General
show the applicant was treated for psychoneurosis and peripheral vascular
disease.  Although this document shows the applicant was recommended for
discharge with disability as noted on his WD AGO Form 53-55, this document
does not show any wounds or injuries received as a result of hostile
action.




4.  The veracity of the applicant’s claim that he received a concussion as
the result of a bomb blast is not in question.  However, absent any
evidence of record to corroborate that the applicant sustained and/or was
treated for a combat related wound/injury, the regulatory burden of proof
necessary to support award of the Purple Heart has not been satisfied in
this case.

5.  In the absence of military records which show the applicant was wounded
or treated for wounds or injuries as a result of hostile action, there is
insufficient evidence upon which to base correction of his records to show
award of the Purple Heart.

6.  The applicant contends that he is entitled to award of the Combat
Infantryman Badge.  However, evidence of record reveals that his records
were corrected to show the Combat Infantryman Badge, the Bronze Star Medal,
and other awards related to his service during World War II.  Therefore,
there is no basis for correcting his records to show award of the Combat
Infantryman Badge.
The applicant will be provided a copy of the DD Form 215 showing his
additional awards.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 November 1945.  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, 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 timely file in this case.

8.  The applicant met the eligibility criteria for award of the Army of
Occupation Medal with Germany clasp and it should be added to his WD AGO
Form 53-55.
The omission of this award from his record and separation document is an
administrative matter that does not require Board action to correct.
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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__TSK __  __PHM__  __CAK __  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 an administrative error in the records of the
individual should be corrected.  Therefore, the Board requests that CMSD-
St. Louis administratively correct the records of the individual concerned
to show his entitlement to the Army of Occupation Medal with Germany Clasp.





                                  ____Ted S. Kanamine_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050001239                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051013                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]