RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 November 2006
      DOCKET NUMBER:  AR20060006190


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Patrick H. McGann, Jr.        |     |Chairperson          |
|     |Mr. Richard G. Sayre              |     |Member               |
|     |Mr. David K. Haasenritter         |     |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 he be awarded the Purple Heart
and that it be added to his WD AGO Form 53-55 (Enlisted Record and Report
of Separation).

2.  The applicant states, in effect, that he was wounded while in combat
when the building he was hiding behind was hit by a German mortar and the
wall he was behind fell on him.  His back was injured and he was knocked
out by the bricks.

3.  The applicant provides a copy of his WD AGO Form 53-55 and a copy of
his Compensation and Pension Exam [examination] Report from the VA
(Veterans Administration), in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 2 February 1946, the date he was honorably discharged.
The application submitted in this case is dated 19 April 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 lost or destroyed in the
National Personnel Records Center fire of 1973.  Records available to the
Board were obtained from alternate sources and show he was inducted and
entered active duty (AD) on 8 September 1944.  He served in the European
Theater of Operations (ETO) from 31 January 1945 to 31 October 1945.
While in service, he served as an automotive mechanic (014).  He was
honorably separated on 2 February 1946.

4.  The applicant's WD AGO Form 53-55 shows that he was awarded the World
War II Victory Medal, the European-African-Middle Eastern Campaign Medal
with two bronze service stars, the Overseas Service Bar, the Good Conduct
Medal, and the Combat Infantryman Badge.  His WD AGO Form 53-55 does not
show any additional awards.

5.  Item 34 (Wounds Received in Action), of his WD AGO Form 53-55, shows
the entry "NONE."  There is no record that the applicant was awarded the
Purple Heart.  There also is no evidence in his records to show he was
wounded or treated for wounds as a result of hostile action.

6.  The available records contain copies of several morning reports which
show the applicant was promoted to pay grade E-3, effective 9 May 1945.
These morning reports also show the applicant's duty status was changed
from "duty to sick absent" on 13 June 1945.  His duty status was changed
from "sick absent to duty" on 26 June 1945.

7.  The applicant provides a copy of a Compensation and Pension Examination
Report, from VA, dated 8 February 2000, which states that he injured his
back when he was hit by falling concrete during combat in Germany in May
1945.  There was a twisting injury around the same time and he was treated
for back strain while on AD.  The report indicates that the notes from 1945
show he was diagnosed as having a severe chronic recurrent joint sprain,
scoliosis of the lumbar spine, which was severe.  The report also indicates
that a previous exam was done in November 1997, which diagnosed the
applicant as having degenerative disk disease, with marked degeneration at
L5-S1, and moderate radiculopathy.

8.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple
Heart is awarded for a wound sustained while in action against the enemy or
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.  This regulation also provides that there is no statute
of limitations on requests for award of the Purple Heart.

9.  Army Regulation 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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was wounded while in combat when the
building he was hiding behind was hit by a German mortar shell and the wall
he was behind fell on him.  He also contends that his back was injured and
he was knocked out by bricks.

2.  The available morning reports show the applicant was promoted to pay
grade E-3.  The entries in the morning report, "duty to sick absent" and
"absent to duty" are an indication the applicant became ill and was
hospitalized.  On recovery, he was returned to duty with his unit.  These
morning report codes do not show he was wounded as a result of hostile
action during combat.

3.  A review of the applicant's Compensation and Pension Exam Report, from
VA, indicates this alleged incident occurred; however, the report was
prepared in the year 2000, 54 years after the alleged incident occurred.
Further, the report was based on information the applicant provided the
physician preparing the report.

4.  There is evidence the applicant was treated for back strain while on
AD.  The applicant was diagnosed as having a severe chronic recurrent joint
sprain and scoliosis of the lumbar spine, which was severe and in 1997, he
was diagnoses as having degenerative disk disease, with marked degeneration
at L5-S1, and moderate radiculopathy.  These diagnosed medical defects do
not qualify the applicant for award of the Purple Heart.

5.  The evidence provided has been considered; however, there is no
conclusive evidence the applicant was treated for a wound he may have
sustained as a result of hostile action with the enemy during World War II.

6.  The evidence presented is not sufficient upon which to base award of
the Purple Heart.  Therefore, the applicant is not entitled to award of the
Purple Heart and to have it added to his WD AGOP Form 53-55.

7.  The evidence shows the applicant was awarded the Combat Infantryman
Badge during World War II.  Based upon the special provisions of the awards
regulation which considers award of the Combat Infantryman Badge a citation
in orders, the applicant is entitled to award of the Bronze Star Medal and
to have this award added to his WD AGO Form 53-55.
8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 February 1946, the date of his
separation from active duty.  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.  The
applicant did not file within the 3-year statute of limitations.  However,
since award of the Purple Heart is not governed by a statute of
limitations, it is appropriate to waive failure to timely file in this
case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__DKH  _  __RGS__  ___PM__  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial 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 awarding the applicant
the Bronze Star Medal based on award of the Combat Infantryman Badge and
adding this award to his WD AGO Form 53-55.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
award of the Purple Heart to the applicant and its addition to his WD AGO
Form 53-55.



                            ______Patrick H. McGann, Jr.____
                                      CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20060006190                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061107                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19460202                                |
|DISCHARGE AUTHORITY     |AR 615-365                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY/GRANT                              |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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