RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 October 2006
      DOCKET NUMBER:  AR20060002276


      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             |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. James B. Gunlicks             |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Mr. Scott W. Faught               |     |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, through his Member of Congress
(MOC), that he be awarded the Purple Heart for wounds he sustained at the
hands of the enemy, his captors, during World War II.

2.  The applicant states, in effect, that he was severely beaten by a Nazi
SS guard.  His spine and shoulder were injured and he still has pain and
problems to this day with them.

3.  The applicant adds that he and an assistant searched for three years
and have obtained the testimony of an eyewitness to the event in question.
He adds that a record was also found at the National Archives at College
Park, Maryland.

4.  The applicant's MOC has requested in his letter of transmittal of the
applicant's application to the Board that his constituent's claim be
investigated within existing rules, regulations, and ethical guidelines,
and provide him with a final decision.

5.  The applicant submits a copy of his WD AGO Form 53-55, Enlisted Record
and Report of Separation – Honorable Discharge, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error that
occurred on 6 December 1945, the date he was honorably discharged from
active duty.  The application submitted in this case is dated 21 December
2005 but was received for processing on 14 February 2006.

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 were partially burned in the National
Personnel Records Center fire of 1973.  Information herein was obtained
from the applicant's enlisted record and report of separation and from
other official Army documents.

4.  The evidence shows the applicant was inducted on 8 August 1942 and
entered service in Phoenix, Arizona, on 24 August 1942.  The applicant was
honorably discharged in the grade of Corporal on 6 December 1945.

5.  The applicant's WD AGO Form 53-55 shows, in Item 33 (Decorations and
Citations), he was awarded the Good Conduct Medal; the European-African-
Middle Eastern Campaign Medal; the American Campaign Medal; and the World
War II Victory Medal.  The Purple Heart is not shown on the applicant's WD
AGO Form 53-55.

6.  Item 30 (Military Occupational Specialty and No.), of the applicant's
WD AGO Form 53-55, shows the applicant held the MOS (military occupational
specialty) 055 (Clerk, General), on the date of his discharge from active
duty.

7.  Item 10 (Military Occupational Assignments), of the applicant's WD AGO
Form 100, Separation Qualification Record, shows he held the MOS (military
occupational specialty) 521 (Basic), for one month; the MOS 677 (Military
Policeman), for 19 months; the MOS 607 (Mortar Gunner), for 9 months; and
the MOS 055, for 4 months.

8.  Item 36 (Service Outside Continental U.S. and Return), of the
applicant's WD AGO Form 53-55, shows the applicant departed the United
States on 21 October 1944 and arrived in the European Theater of Operations
(ETO) on 28 October 1944.  The applicant departed the ETO on 7 May 1945 and
arrived in the United States on 24 May 1945.

9.  Item 29 (record of Current Service), of the applicant's Soldier's
Qualification Record, shows the applicant held the MOS 522 from 19 December
1942 until 6 June 1944.  On 7 June 1944, the applicant was awarded the MOS
745 (Rifleman) and the MOS 607 (Mortar Gunner).  The applicant was captured
by German forces on 17 December 1944 and left control of the United States.
 On this date, he held the MOS 607 and was performing duties of an
infantryman.

10.  A copy of a Battle Casualty Report on file in the applicant's service
personnel records shows he was reported as MIA (Missing in Action), in
Germany, on 17 December 1944.  The Battle Casualty Report shows the
applicant's rank as PFC (Private First Class) and his Arm or Service to be,
Infantry.
11.  A copy of a second Battle Casualty Report, dated 21 May 1945, on file
in the applicant's service personnel records, shows his wife was notified
that her husband, the applicant, was being returned to the United States.
The applicant was identified as being a PFC serving in the Infantry.

12.  On 11 August 1945, the applicant was interviewed and a WD AGO Form
R5072, Statement of Report of Interview of Recovered Person, was completed.
 In one section of the form, the applicant was asked to give the name and
grade of his immediate commanding officer and any other members of his
organization who were familiar with the circumstances [of his capture].
The applicant named his commander, Captain W*****m C*****n and Private
W****** D********I, the Ammunition Carrier who was captured with him and
who now serves as the applicant's witness to his mistreatment by the enemy.

13.  Verification was made by a staff member with the Army Human Resources
Command's Prisoner of War Verification Noncommissioned Officer that the
applicant's witness was taken prisoner on 17 December 1944, the same date
as the applicant.

14.  In another section of the above referenced form [paragraph 12 above],
the applicant was asked to give the position or duty he performed.  The
applicant responded he was a, "mortar gunner."

15.  Item 31 (Military Qualification and Date), of the applicant's WD AGO
Form 53-55, shows the applicant was awarded the Marksman Marksmanship
Qualification Badge, with Rifle Bar [M-1 Rifle].  No other qualification
badges are shown in this item.

16.  Item 32 (Battles and Campaigns), of the applicant's WD AGO Form 53-55,
shows that the applicant was given credit for participating in the
Rhineland, the Ardennes, and the Central Europe campaigns of World War II.

17.  The applicant's WD AGO Form 53-55 shows entitlement to the European-
African-Middle Eastern Campaign Medal; however, it does not show the
appropriate service stars to which the applicant is entitled for his
campaign participation.

18.  Item 34 (Wounds Received in Action), of the applicant's WD AGO Form 53-
55, shows the entry, "None."
19.  The applicant submitted a self-authored, notarized, sworn, statement
and appended it to his application to the Board.  In this statement, the
applicant states, in effect, "On the morning of December 16, 1944, the
German forces started their attack and breakthrough in the Ardennes (also
known as the 'Battle of the Bulge') with an artillery barrage at about 0500
hours and with an attacking force of (I have been told) 25 divisions.  I
was a member of Co. A, 1st Battalion, 424th Infantry Regiment, 106th
Infantry Division, was assigned to a 60mm mortar position as gunner. . . .
. .In the early hours of December 17, approximately 0300 hours, the enemy
overpowered us with armor and infantry elements of the SS Corps.  Of the 6
of us who were captured in my position (we had run out of ammo and could no
longer resist), . . . . . The Germans started to march the group I was with
off to a holding area and one of the SS guards decided that the column was
not moving fast enough.  He struck me with his rifle butt a number of blows
to my right shoulder and side until I fell in the snow and could not get
up.  Had it not been for some of the other prisoners helping me, I would
have frozen to death or been shot as was another prisoner who was badly
hurt and could not keep up."

20.  The applicant and his assistant, a VFW (Veteran of Foreign Wars)
Service Officer, methodically searched and located the former Soldier who
was captured at the same time as he and had been identified by the
applicant in the Statement of Report of Interview of Recovered Person he
had completed in August 1945.

21.  The former Soldier who had been captured at the same time as the
applicant provided him two statements in support of his request for award
of the Purple Heart.  In one statement, the witness stated he had witnessed
the applicant stabbed by another prisoner because he refused to give him a
cigarette.

22.  In a second statement, which was notarized, the former Soldier
confirmed that he and the applicant had been captured during the Battle
of the Bulge.  They were force-marched many miles to box cars and because
they didn't move fast enough were beaten with rifle butts.  He states he
witnessed the applicant hit so hard in the shoulder and in the back he
fell to the ground in the snow.  They were transported to Stalag IIIA in
Luckenwalde, Germany.  At the prisoner of war camp, they were beaten many
more times on their backs and on their shoulders if they did not
move fast enough for the German guards.

23.  Item 8 (Organization), of the applicant's WD AGO Form 53-55, shows the
applicant served with the 424th Infantry Regiment during World War II.
24.  On 30 July 1981, the applicant applied for award of the Combat
Infantryman Badge and for award of the Bronze Star Medal.  He received a DA
Form 1577, Authorization for Issuance of Awards, in reply to his request.
In this DA Form 1577, the applicant was authorized issuance of the Good
Conduct Medal; the American Campaign Medal; the European-African-Middle
Eastern Campaign Medal, with three bronze service stars; the World War II
Victory Medal; the Belgian Fourragere; the Marksman Marksmanship
Qualification Badge, with Rifle Bar; and the Honorable Service Lapel
Button, WW II.  The applicant was notified that a review of his record had
failed to show that he was awarded the Combat Infantryman Badge and that
further action would be taken concerning his request pertaining to award of
the Combat Infantryman Badge and the Bronze Star Medal.

25.  On 21 July 1988, the applicant was provided a DA Form 1577, in reply
to his request for award of the Prisoner of War Medal.  He was authorized
issuance of the Prisoner of War Medal and was notified that his official
military records did not show that he was entitled to the Combat
Infantryman Badge.

26.  On 3 April 2000, the applicant was provided a DA Form 1577.  In this
DA Form 1577, the applicant was notified he was entitled to award of the
Bronze Star Medal; the Prisoner of War Medal; the Good Conduct Medal; the
American Campaign Medal; the European-African-Middle Eastern Campaign
Medal, with three bronze service stars; the World War II Victory Medal; the
Combat Infantryman Badge; the Honorable Service Lapel Button, WW II; and
the Marksman Marksmanship Qualification Badge, with Rifle Bar.

27.  Army Regulation (AR) 600-45 (22 September 1943, as changed on 3 May
1944) provided for award of the Purple Heart to members of the armed forces
of the United States and to civilians who were citizens of the United
States serving with the Army, who were wounded in action against an enemy
of the United States, or as a direct result of an act of such enemy
(emphasis added), 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 in the face of the enemy.)  AR 600-45 also provided, in
pertinent part, that a wounded Soldier's unsupported statement could be
accepted in unusual or extenuating circumstances when, in the opinion of
the officer making the award, no corroborative evidence was obtainable;
however, the statement would be substantiated, if possible.
28.  AR 600-8-22, the current day awards regulation provides that there is
no statute of limitations on requests for award of the Purple Heart.

29.  AR 600-8-22 provides, in pertinent part, that the Bronze Star Medal is
awarded for heroism and for meritorious achievement or service in military
operations against an armed enemy.  The Bronze Star Medal is authorized for
each individual who was cited in orders or awarded a certificate
for exemplary conduct in ground combat between 7 December 1941 and
2 September 1945 or whose achievement or service, during that period, was
confirmed by documents executed prior to 1 July 1947.  An award of the
Combat Infantryman Badge or the Combat Medical Badge is considered to be a
citation in orders.  This means, in effect, that the Bronze Star Medal is
to be awarded to individuals who were authorized either badge for service
during World War II.

30.  AR 600-8-22 provides, in pertinent part, for award of the Prisoner of
War Medal.  The regulation states that the Prisoner of War Medal was
authorized on 8 November 1985 and is awarded to individuals who in past
armed conflicts were taken prisoner or held captive.

31.  War Department Circular 269-1943 established the Combat Infantryman
Badge and the Expert Infantryman Badge to recognize and provide an
incentive to infantrymen.  The Combat Infantryman Badge was awarded for
exemplary conduct in action against the enemy.  War Department Circular
186-1944 further provided that the Combat Infantryman Badge was to be
awarded only to infantrymen serving with infantry units of brigade,
regimental, or smaller size.  Additionally, World War II holders of the
Combat Infantryman Badge received a monthly pay supplement known as
combat infantry pay.  The Military Awards Branch of the U.S. Army Human
Resources Command, (USAHRC) has advised in similar cases that, during
World War II, the Combat Infantryman Badge was normally awarded only to
enlisted individuals who served in the following positions:  Light
Machine Gunner (604), Heavy Machine Gunner (605), Platoon Sergeant (651),
Squad Leader (653), Rifleman (745), Automatic Rifleman (746), Heavy
Weapons NCO (812), and Gun Crewman (864).  No other Soldier in combat is
more exposed on a daily basis to the dangers and hardships of war and no
other branch of the service suffers more casualties than the infantry.
To maintain the prestige, uniqueness, and traditional value of the Combat
Infantryman Badge, the criteria for award has changed little over the
years.
DISCUSSION/CONCLUSIONS:

1.  The regulation, in effect at the time of the applicant's captured by
German forces, provided for award of the Purple Heart, to members of the
armed forces 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 purposes of awarding
the Purple Heart, the wound was defined as an injury to any part of the
body from an outside force, element, or agent in the face of the enemy.
The regulation also provided, in pertinent part, that a wounded Soldier's
unsupported statement could be accepted in unusual or extenuating
circumstances when, in the opinion of the officer making the award, no
corroborative evidence was obtainable; however, the statement would be
substantiated, if possible.

2.  The applicant and his assistant, a VFW Service Officer, located the
applicant's ammunition bearer who was captured on the same date as the
applicant and who was held a prisoner of war in the same stalag.  This
former Soldier provided a sworn, notarized, statement of support attesting
to the beatings they received at the hands of their captors.

3.  In this case, the applicant provided a statement in support of his
claim but was fortunate enough to have found a fellow Soldier who
substantiated his statement of having been beaten by his captors.  There is
no evidence medical treatment was provided the applicant; if treatment were
necessitated by a medical officer, there is little likelihood medical
treatment records can be obtained at this late date.  There were unusual
and extenuating circumstances involved in this case – the applicant was
being held a prisoner of war.

4.  Based on the facts, the evidence, and based on the unusual and
extenuating circumstances in this case, the applicant is entitled to
award of the Purple Heart and to have this award added to his WD AGO
Form 53-55.

5.  Records show that the applicant was determined to be eligible for and
was authorized issuance of the Combat Infantryman Badge for his service
during World War II.  Award of this badge requires Board action.  The
evidence however supports its award.  The applicant was an infantry
Soldier who held an infantry MOS and was performing duties in this MOS at
the time he was captured by the enemy.  Based on the previously made
determination and on the evidence, he is entitled to award of the Combat
Infantryman Badge and to have it added to his WD AGO Form 53-55.
6.  Based on the special provisions of the awards regulation that
considers award of the Combat Infantryman Badge a citation in orders, and
based on the Combat Infantryman Badge having been officially awarded in
this Record of Proceedings, it would be appropriate to award the
applicant the Bronze Star Medal and to add it to his WD AGO Form 53-55.

7.  The applicant was awarded the European-African-Middle Eastern
Campaign Medal for his service in the ETO.  The applicant served in three
campaigns during World War II; however, he was not awarded the
appropriate service stars to denote his campaign participation credit.
He is therefore entitled to award of three bronze service stars to be
affixed to his European-African-Middle Eastern Campaign Medal and to have
these bronze service stars added to his WD AGO Form 53-55.

8.  The National Personnel Records Center determined and notified the
applicant he was entitled to the following awards.  Action by the Board is
not required to have these awards added to his WD AGO Form 53-55:  the
Prisoner of War Medal; the Marksman Marksmanship Qualification Badge, with
Rifle Bar; and the Belgian Fourragere.  These awards have not been added to
the applicant's WD AGO Form 53-55 heretofore and should be added now in the
interest of justice and equity.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 December 1945, the date of his
separation from active duty.  However, the ABCMR was not established until
2 January 1947.  As a result, the time for the applicant to file a request
for correction of any error or injustice expired on 1 January 1950.
Although the applicant did not file within the ABCMR statute of
limitations, it is appropriate to waive failure to timely file based on the
fact there is no statute of limitations on requests for award of the Purple
Heart.

BOARD VOTE:

__JBG __  __MJF __  __SWF__  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief and to excuse failure to timely file.  As a
result, the Board recommends that all Department of the Army records of the
individual concerned be corrected by:

      a.  deleting the European-African-Middle Eastern Campaign Medal from
the applicant's WD AGO Form 53-55;


      b.  awarding the applicant the Purple Heart for wounds sustained on
December 17, 1944 and adding this award to the applicant’s WD AGO Form 53-
55.


      c.  awarding the applicant the European-African-Middle Eastern
   Campaign Medal, with three bronze service stars, to correctly denote
   his campaign credit and, adding this award to the applicant's WD AGO
   Form 53-55;



      d.  awarding the applicant the Combat Infantryman Badge and adding
this award to his WD AGO Form 53-55;

      e.  awarding the applicant the Bronze Star Medal, based on his having
been awarded the Combat Infantryman Badge for his service during World War
II, and adding this award to his WD AGO Form 53-55; and


      f.  adding the already-awarded Belgian Fourragere, the Prisoner of
War Medal; and the Marksman Marksmanship Qualification Badge, with Rifle
Bar to his WD AGO Form 53-55.




                            ______James B. Gunlicks_____
                                      CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2006000276                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061005                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1. 46    |107.0000                                |
|2.  61                  |107.0015                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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