RECORD OF PROCEEDINGS


	IN THE CASE OF:       
	      

	BOARD DATE:           13 September 2005                   
	DOCKET NUMBER:  AR20050001266


	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. Lisa O. Guion

Analyst


The following members, a quorum, were present:


Ms. Shirley L. Powell  

Chairperson

Mr. Robert L. Duecaster

Member

Ms. Jeanette R. McCants

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, that his deceased father, a former service member (FSM), be awarded the Purple Heart (PH).

2.  The applicant states, in effect, that the FSM was shot in the right foot by German machine gun fire during the Battle of the Bulge and as a result, he should be awarded the PH.  He also states that Item 34 (Wounds Received in Action) of the FSM's separation document (WD AGO Form 53-55) should be corrected to show the wound he received.

3.  The applicant provides the following documents in support of his request:  Request for Information Needed to Reconstruct Medical Data (NA Form 13055); Separation Document (WD AGO Form 53-55); Casualty Status Report 
(WD AGO Form 234); FSM's Letter, dated 28 May 1945; Birth Certificates and Death Certificate.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an alleged error that occurred on 29 December 1945.  The application submitted in this case is dated 27 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 FSM'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 (NPRC) in 1973.  It is believed his records were lost or destroyed in that fire.  However, the applicant provided sufficient documents for the Board to conduct a fair and impartial review of this case.  This case is being considered using a reconstructed record that primarily consists of the FSM’s WD AGO Form 53-55, WD AGO Form 234 and other documents provided by the applicant.

4.  The FSM's separation document shows he was inducted into the Army of the United States and entered active duty on 29 June 1944.  He continuously served on active duty until he was honorably separated on 29 December 1945, having completed 1 year, 6 months and 1 day active military service.

5.  The FSM’s WD AGO Form 53-55 also shows he served in the European Theater of Operations (ETO) from 20 December 1944 through 15 December 1945 and that he was assigned to Company (Co) A, 393rd Infantry (Inf) Regiment (Rgmt), 99th Inf Division (Div).  It further shows that during his active duty tenure, he earned the Army Good Conduct Medal, European African Middle Eastern Campaign Medal with 2 bronze service stars, World War II Victory Medal, and 2 Overseas Service Bars.

6.  Item 32 (Battles and Campaigns) of the FSM’s separation document shows he participated in the Ardennes and Central Europe campaigns.  Item 34 (Wounds Received In Action) contains the entry “None”.  

7.  The WD AGO Form 234 prepared by the 4106th U.S. Army Hospital on 16 February 1945 shows the FSM suffered a penetrating wound to the first and second toes on his right foot.  However, this document does not indicate the cause of this wound.  Further, the reconstructed record contains no orders or other documents that indicate he was ever wounded as a result of enemy action, or ever recommended for or awarded the PH.  

8.  The applicant also provides a five page letter written by the FSM.  In this letter, he tells his wife and children that he was wounded in the foot by machine gun fire.  He indicates that the enemy opened up too low to get him and he hid in a ditch and stayed there a while until he was able to get out of the way and get to a hospital.

9.  The FSM died on 4 February 1968.

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, and this treatment must have been made a matter of official record.  


11.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in WWII.  This document shows that at the time of the applicant's assignment to 
Co A, 393rd Inf Rgmt, 99th Inf Div, the unit received the Meritorious Unit Commendation, Belgian Fourragere, Army Occupation Medal with Germany Clasp, and was credited with participating in the Rhineland campaign, which is not shown on the FSM’s separation document.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that the FSM is entitled 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 that the wound for which the award is being made was received as a direct result of, or was caused by enemy action.  Further, the wound must have been treated by military medical personnel, and a record of this treatment must have been made a matter of official record.

2.  The WD AGO Form 234 confirms the FSM was treated for a wound he received to the first and second toes of his right foot while serving in the ETO.  However, this treatment record does not indicate the wound was received as a direct result of, or that it was caused by enemy action.  Further, Item 34 of the WD AGO Form 53-55 contains the entry "None", which indicates the FSM was not wounded in action.  The fact the FSM was treated for the wound in question at the time and was not recommended for, or awarded the PH would indicate the chain of command did not believe the wound qualified for award of the PH.  

3.  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.

4.  The veracity of his claim that the FSM is entitled to the award of the PH is not in question.  However, absent any evidence of record to confirm the wound to the toes on his right foot was combat related, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Thus, there is an insufficient evidentiary basis to support award of the PH at this late date. 


5.  Records show the alleged error or injustice related to the PH now under consideration should have been discovered by the applicant on 4 February 1968, the date of the FSM's death.  Thus, the time for him to file a request for correction of any error or injustice expired on 3 February 1971.  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.

6.  The evidence confirms that based on the FSM’s World War II service
and campaign participation in the the ETO, he is entitled to the Meritorious 
Unit Commendation, Belgian Fourragere, Army of Occupation Medal with Germany Clasp and to a 3rd bronze service stars with his European African Middle Eastern Campaign Medal based on his participation in the Rhineland campaign in addition to the two campaigns already listed on his separation document.  Therefore it would be appropriate to add the Rhineland campaign and these awards to the FSM’s applicant's record and separation document at this time.  

7.  The omission of the awards outlined in the preceding paragraph from the FSM’s record and separation document is an administrative matter that does not require Board action to correct.  Therefore, his records will be corrected 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 PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___SLP _  __RLD __  __JRM __  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 and separation document of the individual concerned to show his participation in the Rhineland campaign, and his entitlement to the Meritorious Unit Commendation, Belgian Fourragere, Army of Occupation Medal with Germany Clasp and 3 bronze service stars with his European African Middle Eastern Campaign Medal; and by providing a corrected separation document that includes these changes.  




		____Shirley L. Powell_____
		        CHAIRPERSON





INDEX

CASE ID
AR20050001266
SUFFIX

RECON
NA
DATE BOARDED
2005/09/13
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
29 December 19845
DISCHARGE AUTHORITY
AR 615-365
DISCHARGE REASON
Convenience of Gov (Demobilization)
BOARD DECISION
Deny with note
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
107.0000
2.

3.

4.

5.

6.