RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 October 2006
      DOCKET NUMBER:  AR20060003254


      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. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Peter B. Fisher               |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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 that the former service member's (FSM) records
be corrected to show he was separated from active duty due to a medical
disability.

2.  The applicant also requests a reissue of his previously awarded medals.
 This action is not within the jurisdiction of this Board and will not be
addressed further. Requests for reissue of medals should be addressed to
National Personnel Records Center, Medals Section (NRPMA-M), 9700 Page
Boulevard, St. Louis, Missouri 63132-5100.

3.  In a separate statement the applicant's son requests a reissue of the
awards to which the FSM was authorized, to include the Good Conduct Medal,
two Purple Hearts, the European-African-Middle Eastern Campaign Medal with
two bronze service stars, and the Army Lapel Button.

4.  The applicant states, in effect, the FSM contracted yellow fever during
his first period of service and resorted to intoxication to deal with his
relapses.  The FSM should have been discharged originally due to this
condition and his second period of service aggravated that condition.

5.  The applicant provides copies of a request for reissue of the FSM's
medals, two WD AGO Forms 53-55 (Enlisted Record and Report of Separation),
her marriage certificate, her son's birth certificate, the FSM's death
certificate, and a Department of Veterans Affairs (VA) Rating Decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 26 February 1947, the date of his discharge.  The
application submitted in this case is dated 21 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 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.

4.  The available records show the applicant entered active duty on
22 March 1942 and served in the European Theater of Operations from 30 May
1943 through 16 July 1945.  He was honorably released from active duty on 9
October 1945.

5.  The WD AGO Form 53-55 issued 9 October 1945 lists the FSM's awards and
decorations as the Good Conduct Medal, the European-African-Middle Eastern
Campaign Medal with two bronze service stars, and the Army Lapel Button.
Item 34 (Wounds Received in Action) indicates the FSM was wounded in July
1944 and item 55 (Remarks) states he suffered from yellow fever (date
unknown).

6.  The FSM reenlisted on 11 March 1946, served in the European Theater of
Operations from 16 April 1946 through 4 February 1947.

7.  The 4 February 1947 WD AGO Form 53-55 shows the FSM was discharged
under the provisions of Army Regulation 635-368.  He is shown to have
qualified as a marksman with the carbine but no awards or decorations were
authorized during this period of service.  Item 34 (Wounds) states "None".


8.  In the development of this case a search of the health record research
project records, commonly referred to as the "SGO Files", was made.  These
records involved transposing the hospital admission card data from the
periods of World War II and the Korean conflict onto magnetic tape.  In
1988 the National Research Council made these tape files available to the
National Personnel Records Center (NPRC).  This information is a valuable
substitute for the records lost in the NPRC fire of 1973.  A search of
these files found that the applicant was treated for arthritis in May 1944
and for the "deleterious effects" of chlorine gas in "1944".

9.  In a 25 April 2005 Rating Decision, the VA concluded that the
applicant's service connected yellow fever and rheumatic fever may have
contributed to his heart condition and granted service connection for the
cause of death.

10.  Title 10, United States Code, chapter 61, provides disability
retirement or separation for a member who is physically unfit to perform
the duties of his office, rank, grade or rating because of disability
incurred while entitled to basic pay.

11.  Army Regulation 615-368, then in effect, set forth the policy and
procedures for separation of enlisted personnel for unfitness.  Unfitness
included, in addition to misconduct and repeated petty offenses, habits and
traits of character manifested by antisocial or amoral trends, chronic
alcoholism, criminalism, drug addiction, or habitual shirking.  Action to
separate an individual was to be taken when, in the judgment of the
commander, rehabilitation was unsuccessful, impractical or was unlikely to
produce a satisfactory soldier.  When separation for unfitness was
warranted an undesirable discharge was normally considered appropriate.

12.  Army Regulation 600-8-22, paragraph 2-8 provides that the Purple Heart
is awarded to an individual who is wounded in action against an enemy of
the United States, the armed force of a foreign country which is or has
been engaged, while serving with a friendly foreign forces against an
opposing force even though the U.S. is not engaged, as the result of any
act of such enemy or opposing force or as a result an act of any hostile
foreign force.  Substantiating evidence must be provided to verify that the
wound was the result of hostile action, the wound must have required
treatment by a medical officer, and the medical treatment must have been
made a matter of official record.  A wound is defined as an injury to any
part of the body from an outside force or agent sustained under one or more
of the conditions listed above.  A physical lesion is not required,
however, the wound for which the award is made must have required treatment
by a medical officer and records of medical treatment for wounds or
injuries received in action must have been made a matter of official
record.

13.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent
part, for award of the World War II Victory Medal.  The World War II
Victory Medal is awarded for honorable service between 7 December 1941 and
31 December 1946, both dates inclusive.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record is insufficient to support a finding that the
applicant was suffering from any medical condition that rendered him unfit
to perform his duties.  Therefore, entitlement to a correction of the
reason for separation is not warranted.

2.  While there are indications that the applicant may have been wounded
during his first period of service, the SGO records do not clarify his
hospitalizations and the other available documentation is insufficient and
slightly conflicting as to when, where, or how the wounds or injuries
occurred.  Therefore, entitlement to the Purple Heart(s) can not be
validated.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 February 1947; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 25 February 1950.  The applicant did not 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.  In addition to the awards and decorations listed on the WD AGO Forms 53-
55, the FSM is also authorized the World War II Victory Medal, and the
Marksman Qualification Badge with Carbine Bar.  Omission of these awards
from the WD AGO Form 53-55 constitutes administrative error which does not
require action by the Board.  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
2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__PBF__  __RCH___  __JTM__  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 of the individual
concerned to show, that in
addition to the awards listed on the WD AGO Forms 53-55, the FSM was
authorized the World War II Victory Medal, and the Marksman Qualification
Badge with Carbine Bar.





                                  __      John T. Meixell_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060003254                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061017                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |  . . . .                               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107                                     |
|2.                      |108                                     |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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