RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 December 2005
      DOCKET NUMBER:  AR20050003109


      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. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Donald W. Steenfott           |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 that he was awarded the Purple Heart in the field
but never received the certificate for the medal.  He further states that
there are medical benefits he could receive if he had the certificate for
his Purple Heart.

3.  The applicant provides:

      a.  An undated self-authored letter.

      b  X-ray films.

      c.  Copies of letters written during his military service.

      d.  Maps of cities in Italy during World War II.

      e.  A DA Form 638 (Recommendation for Award).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged (error or
injustice) which occurred on 7 August 1945.  The application submitted in
this case is dated 9 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 applicant’s WD AGO Form 53-55 (Enlisted Record and Report of
Separation-Honorable Discharge) shows that he enlisted on 12 January 1941
and entered active duty on 13 January 1941.  It also shows he held military
occupational specialty (MOS) 776 (Radio Operator).  He continuously served
on active duty until his retirement from active military service on 31
August 1965.

4.  The applicant’s WD AGO Form 53-55 also shows the applicant served in
the European-African-Middle Eastern (EAME) Theater of Operations from
2 September 1943 until approximately July 1945 and that during his tenure
on active duty, he earned the EAME Campaign Medal with five bronze service
stars, Army Good Conduct Medal, and the American Defense Service Medal.

5.  On 7 August 1945, the applicant was honorably separated after
completing a total of 4 years, 6 months and 26 days of active military
service.  The separation document (WD AGO Form 53-98) he was issued at the
time shows he participated in the Naples-Foggia, Rome-Arno, Northern
Apennines, Rhineland, Central Europe campaigns of World War II.

6.  Item 34 (Wounds Received in Action) of the applicant’s WD AGO Form 53-
55 contains the entry “None” and the applicant authenticated the separation
document with his signature in Item 56 (Signature of Person Being
Separated).

7.  The applicant provided a self-authored letter in which he stated that
between January and February 1944 during the Battle of Cassino, he was
positioned on a hill near a town in Cervano, Italy when his unit received
heavy shelling from artillery and mortar.  He continued that he sustained
injuries to his left arm and right knee where a piece of shrapnel lodged in
his kneecap.

8.  The applicant further explained that he woke up in a field hospital and
at that time learned that medics had surgically removed the shrapnel in his
knee.  He continued that after several days of recuperating, a major gave
him a Purple Heart which he sent to his mother.

9.  The applicant provided a copy of a letter he sent to his wife during
the war.  In the letter, the applicant explained that he was sitting in a
truck late at night when he heard large shells come over the vehicle and
explode.  He continued that when he decided to get out of the truck, a 200
pound shell hit the truck which rendered him unconscious.  He explained in
this letter that not one bit of shell hit him.

10.  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.



11.  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,
Headquarters Battery, 935th Field Artillery Battalion, received occupation
credit for Germany for the period 2 May to 28 September 1945.

12.  Paragraph 5-11 of the awards regulation contains guidance on the World
War II Victory Medal.  It states, in pertinent part, that it was awarded
for service between 7 December 1941 and 31 December 1946, both dates
inclusive.

13.  Army Regulation 600-8-22 also provides, in pertinent part, that a
silver service star is authorized in lieu of five bronze service stars.

14.  Department of the Army Pamphlet 672-1 (Unit Campaign Participation
Credit Register-World War II) establishes the eligibility of individual
members for campaign participation credit, assault landing credit, and unit
citation badges awarded during World War II.  This record shows that
Headquarters Battery, 935th Field Artillery Battalion was awarded the
French Croix de Guerre for the period 1 December 1943 to 31 July 1944 based
on Department of the Army General Orders Number 43-50.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the Purple Heart and the
supporting documents he provides were carefully considered.  However, by
regulation, in order to support awarding a member the Purple Heart, it is
necessary to establish that a member was wounded or injured in action, that
the wound required medical treatment, and that the medical treatment was
made a matter of official record.

2.  The applicant provided x-ray films taken in 2004.  However, the
available records are void of any indication that the applicant ever
received or was treated for a combat related wound or injury that would
have supported award of the Purple Heart.





3.  The applicant’s WD AGO Form 53-55 contains the entry “None” in Item
34 (Wounds Received In Action).  The applicant authenticated this
separation document with his signature, thereby verifying that the
information it contained, to include the Item 34 entry, was correct at the
time the document was prepared and issued.

4.  The veracity of the applicant’s claim of entitlement to the Purple
Heart 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.  Regrettably, in the absence of records prepared at the time of the
applicant’s service which show that he was wounded or injured as a result
of hostile action, there is insufficient evidence upon which to base award
of the Purple Heart in this case.

6.  Records show the applicant participated in five campaigns during his
service. Therefore, he is entitled to correction of his records to show one
silver service star to be affixed to his European-African-Middle Eastern
Campaign Medal.

7.  Based on the applicant’s World War II service, he is entitled to an
entry on his WD AGO Form 53-55 to show the citation of French Croix de
Guerre.

8.  Evidence of record shows the applicant met the eligibility criteria for
award of the Army of Occupation Medal with Germany Clasp.  Therefore, this
award should be added to his WD AGO Form 53-55.

9.  The applicant served a period of qualifying service for award of the
World War II Victory Medal; therefore, his records should be corrected to
show this award.

10.  The ABCMR does not review cases for the purpose of establishing
eligibility for VA benefits.  Therefore, any questions the applicant has
regarding his eligibility for VA benefits should be addressed to that
agency.

11.  Records show the alleged error or injustice now under consideration
should have discovered on 7 August 1945.  However, the ABCMR was not
established until 2 January 1947.  Therefore, the time to file a request
for correction of any error or injustice expired on 1 January 1950.
Although the request was not submitted within the ABCMR’s statute of
limitations, it is appropriate to waive failure to timely file based on the
fact that there is no statute of limitations on requests for award of the
Purple Heart.

12.  Evidence shows that the FSM’s records contain administrative error
which does not required action by the Board.  Therefore, administrative
correction of the FSM’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

__BPI___  __DWS__  __EEM__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that it is in the best interest of justice to
excuse failure to timely file.

2.  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.

3.  The Board determined that 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
by showing:

      a.  award of the European-African-Middle Eastern Campaign Medal with
one silver star, the World War II Victory Medal, the Army of Occupation
Medal with Germany Clasp; and


      b.  amending his WD AGO Form 53-55 to show the entry “French Croix de
Guerre Unit Citation—No Emblem Authorized.”





                            ____ Bernard P. Ingold ____
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003109                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051206                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |, DENY w-note                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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