RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         17 November 2005
      DOCKET NUMBER:  AR20050008718


      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. Yvonne Foskey                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. John E. Denning               |     |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, award of the Purple Heart (PH).

2.  The applicant states, in effect, he is requesting award of the PH for
injuries he sustained during WWII.  He states that he was assigned to the
89th Infantry Division of Patton's 3rd Army in the village of Luckau,
Germany, when the
329th Infantry and his squad took this village with very hard fighting.  He
claims that on their way out of the village white flags were hung out of
the windows per their orders, but upon their return to the village the next
day, all white flags were gone from the windows because the German Army had
filtered in during the night and they had to retake the town all over
again.

3.  The applicant further states that while he and a staff sergeant (SSG)
were on the side of the street that was very open and by the hospital being
used by the German Soldiers, someone threw a hand grenade into the street
at them.  He claims he was hit by a piece of the "potato masher' which they
called the German grenades.  He also states that while at the hospital, a
German nurse pulled the shrapnel out of his right leg below the knee, put
medication on it, and taped the wound shut with a gauze patch under the
tape.  Thereafter, they returned to the village where they were billeted
and found out that the war in Germany was over the day before.

4.  The applicant provides a Self-Authored Letter, separation document
(WD AGO Form 53-55) and a Department of Veterans Affairs (VA) Rating
Decision in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 31 March 1946.  The application submitted in this case is
dated
20 September 2005.

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 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, there were
sufficient documents remaining in a reconstructed record for the Board to
conduct a fair and impartial review of this case.  This case is being
considered using reconstructed records that primarily consist of the
applicant’s WD AGO Form 53-55.

4.  The applicant’s separation document shows he was inducted into the Army
on 26 March 1943 and entered active duty on 2 April 1943.  He continuously
served on active duty for 1 year, 9 months, and 10 days until being
honorably separated on 31 March 1946.  The WD AGO Form 53-55 also shows he
served in the European Theater of Operations (ETO) from 21 January 1945
through 18 March 1946, and that he was assigned to the 355th Infantry
Regiment, 89th Infantry Division and participated in the Rhineland and
Central Europe campaigns.

5.  Item 31 (Military Qualification and Date) of the applicant’s separation
document shows he received the Combat Infantryman Badge (CIB) on 1 May
1945.  Item 33 (Decorations and Citations) shows he earned the American
Campaign Medal, European-African-Middle Eastern Campaign Medal, Army Good
Conduct Medal, and World War II Victory Medal during his active duty
tenure.  Item 34 (Wounds Received in Action) contains the entry “None”, and
the PH is not included in the list of awards included in the separation
document.  The applicant authenticated his separation document with his
signature in Item 56 (Signature of Person Being Separated).

6.  The applicant provides a copy of a VA Rating Decision, dated 26
September 2003, which shows “scars, residual of shrapnel wound, lower right
leg, service connected, World War II, incurred, 0% from 01/14/2002.”  This
document gives no indication that this rating decision was supported by
military medical treatment records.

7.  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; this treatment must be supported by medical treatment records that
were made a matter of official record.

8.  Army Regulation 600-8-22 (Military Awards) contains the Army’s awards
policy.  Paragraph 3-13 of the awards regulation outlines the criteria for
award of the BSM.  Paragraph 3-13d (2) states, in effect, that the BSM is
authorized to members of the Armed Forces of the United States who, after 6
December 1941, were cited in orders or awarded a certificate for exemplary
conduct in ground combat against an armed enemy between 7 December 1941 and
2 September 1945.  This paragraph also stipulates that for this purpose, an
award of the CIB is considered as a citation in orders.

9.  Paragraph 5-12 of the awards regulation contains the guidance for award
of the European-African-Middle Eastern Campaign Medal.  It states, in
pertinent part, that a bronze service star is authorized with this award
for each campaign a member is credited with while serving in the ETO.

10.  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.  It confirms that during his
tenure of assignment, the applicant’s unit (355th Infantry Regiment, 89th
Infantry Division) was awarded the Meritorious Unit Commendation and the
Army of Occupation Medal with Germany Clasp.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement 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 a member was
wounded/injured in action, was treated for the wound/injury by military
medical personnel, and a record of this medical treatment must have been
made a matter of official record.

2.  The veracity of the applicant’s claim of entitlement to the PH is not
in question.  However, absent any evidence (medical treatment records, eye-
witness statements, or record entries) showing that he was ever wounded in
action, or that he was ever treated for a combat related wound or injury by
military medical personnel, the regulatory burden of proof necessary to
support award of the PH has not been satisfied in this case.

3.  The record shows the applicant should have discovered the alleged error
or injustice now under consideration on 31 March 1946, the date of his
separation.  Therefore, based on the date the Board was established 2
January 1947, the time for him to file a request for correction of any
error or injustice expired on
1 January 1950.  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.

4.  The evidence of record confirms that based on his having earned the CIB
during World War II, the applicant is entitled to be awarded the BSM, for
his exemplary conduct in ground combat against an armed enemy while serving
in the ETO.  Based on his World War II service and campaign participation
in the ETO, he is also entitled to the Meritorious Unit Citation, Army of
Occupation Medal with Germany Clasp and 2 bronze service stars with his
European-African-Middle Eastern Campaign Medal.  The omission of these
awards from his record and separation document is an administrative matter
that does not require Board action to correct.  Therefore, the Case
Management Support Division (CMSD), St. Louis, Missouri will make the
necessary administrative correction 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

___LE    _  ___JED _  __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 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 did determine there is an administrative error in the records
of the individual concerned that should be corrected.  Therefore, the Board
requests the CMSD-St. Louis administratively correct his records to show
his entitlement to the Bronze Star Medal, Meritorious Unit Citation, Army
of Occupation Medal with Germany Clasp, and 2 bronze service stars for his
European-African-Middle Eastern Campaign Medal; and by providing him a
correction to his separation document that reflects these changes.




                                  _____Lester Echols_______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050008718                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-11-17                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1946/03/31                              |
|DISCHARGE AUTHORITY     |AR615-365 . . . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|                        |107                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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