RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 January 2007
	DOCKET NUMBER:  AR20060008203 


	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:


Ms. Linda D. Simmons

Chairperson

Ms. Jeanette R. McCants

Member

Mr. John G. Heck

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 he be awarded the Purple Heart.

2.  The applicant states he suffered a concussion with bleeding from the ears during combat in Germany.

3.  The applicant provides copies of a WD AGO Form 53-55 (Enlisted Record and Report of Separation), a letter from his doctor, a letter from his mother, three letters from fellow Soldiers and a Veterans Administration (VA) VA Form 2345 (Report of Physical Examination), all dated 1949.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 1 May 1946, the date of his separation from active duty.  The application submitted in this case is dated 30 May 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.  Information herein was obtained from the WD AGO Form 53-55 and the documents from his 1949 VA claim.

4.  The WD AGO Form 53-55 shows that the applicant entered active duty on 
30 June 1943, served in the European Theater of Operations with the Headquarters Company, 3rd Battalion, 242nd Infantry Regiment, 42nd Infantry Division from 8 December 1944 through 24 April 1946, and was honorably discharged, as a sergeant, on 1 May 1946.

5.  The WD AGO Form 53-55 further shows he served in the military occupational specialty of 641 (Field Lineman).  It lists his awards as the Bronze Star Medal [by Headquarters, 42nd Infantry Division General Order 57, dated 
25 February 1946], the Good Conduct Medal, the European-African-Middle Eastern Campaign Medal with participation in two campaigns, the Combat Infantryman Badge, the Expert Marksmanship Badge with Carbine Bar, and the Sharpshooter Marksmanship Badge with Rifle Bar.

6.  At the time of his 14 April 1949 VA physical examination, the applicant reported his service connected hearing problems were worsening.  The applicant related that he was now unable to even hear a click next to his right ear and that as a result he was very nervous.  The report lists his post service employment and states that due to his hearing problems he was unemployed and his only income was his VA disability compensation.

7.  A 1 June 1949 letter from the applicant’s doctor states that he examined the applicant and found he was suffering from hearing loss that was getting worse.  The applicant related the onset of the hearing loss started when several shells exploded close to him during the Battle of the Bulge.  The doctor reports that the applicant appears to be lip reading.

8.  A 2 June 1949 sworn statement from his mother stated the applicant had no trouble with his hearing prior to service.  In June of 1945 he had written her telling her of hearing problems due to an explosion in Germany.  Upon his return from the service she noticed his hearing was quite bad.

9.  Sworn statements from two Soldiers who served with the applicant both relate that after an engagement with German tanks, on or about 15 January 1945, they both noticed that the applicant complained about his ears ringing and that he was having problems with his hearing.  

10.  A sworn statement from another Soldier, who was with the applicant at the time indicates they came under fire and that both he and the applicant were stunned by the concussion from exploding shells and that from that point on the applicant complained of severe headaches and ringing in his ears.  The Soldier states the applicant’s hearing was affected and it got gradually worse.

11.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards.  In pertinent part it states at:

	a.  paragraph 2-8 provides for award of the Purple Heart 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;

	b.  paragraph 3–1, 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 such 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.  A bronze service star is attached to the Bronze Star Medal to denote second and subsequent award.

	c.  paragraph 5-11, the Army of Occupation Medal is awarded for service of 30 consecutive days at a normal post of duty while assigned to a qualifying location.  The dates of qualifying service for the Army of Occupation of Germany are between 9 May 1945 and 5 May 1955 and for Army of Occupation of Austria between 9 May 1945 and 27 July 1955.  To denote the location of occupation the Army of Occupation Medal Clasp inscribed "Germany" is authorized to Soldiers who served in the European Theater during the occupation of Europe and for Soldiers who served in the Far East Theater during the occupation of the Far East the Clasp is inscribed "Japan."  Clasps bearing other inscriptions are not authorized.

	d.  paragraph 5–12, the World War II Victory Medal is awarded for service between 7 December 1941 and 31 December 1946, both dates inclusive.

	e.  paragraph 5–13, the European-African-Middle Eastern Campaign Medal is awarded for service between 7 December 1941 and 8 November 1945. A bronze service star is authorized for each campaign a Soldier participated in during the period in which they participated in combat. 

	f.  paragraph 7–13, the Presidential Unit Citation (Army) (formally known as the Distinguished Unit Citation) is awarded to units of the Armed Forces of the United States and cobelligerent nations for extraordinary heroism in action against an armed enemy occurring on or after 7 December 1941.  The unit must display such gallantry, determination, and esprit de corps in accomplishing its mission under extremely difficult and hazardous conditions as to set it apart from and above other units participating in the same campaign.
12.  Department of the Army Pamphlet 672-1, Unit Citation and Campaign Participation Credit Register shows the 242nd Infantry Regiment, 42nd Infantry Division is credited with participation in three campaigns, including the Ardennes-Alace campaign which is not listed on the applicant’s discharge document.  It further shows that this unit was awarded a Distinguished Unit Citation and received credit for occupation duty in both Germany and Austria.

DISCUSSION AND CONCLUSIONS:

1.  With the loss of the official military records and absence of the service medical records, there is no available documentation to show that the applicant received treatment by a medical officer or that any medical treatment, if obtained, was made a matter of official record for a combat incurred wound.

2.  Normally, individual statements are inadequate as the sole basis for award of the Purple Heart because they do not fulfill the regulatory requirement that there be a record of medical treatment.  However, in this case the lack of a record of medical treatment is completely reasonable and there is an adequate basis to conclude that the applicant was wounded in combat.  Firstly, after a month-and-a-half of intensive combat they would have been well aware that there was no available treatment for ear injuries and, given the well documented reluctance of World War II Soldiers to chance separation from their comrades, the lack of a record of medical treatment is not surprising.  Furthermore the 1949 sworn statements from three Soldiers, who served with the applicant, are consistent and in consonance with the available medical findings and the 1949 VA rating decision.  These factors combined demonstrate that, it is in the interest of justice to award the Purple Heart for wounds received in combat on or about 15 January 1945, as an exception to policy.  

3.  In addition to the personal award of the Bronze Star Medal reflected on his WD AGO Form 53-55, the applicant is also entitled to award of a second Bronze Star Medal by virtue of being awarded the Combat Infantryman Badge.  Therefore, the record should be corrected to show award of the Bronze Star Medal with one bronze oak leaf cluster. 

4.  In addition to the awards listed on the WD AGO Form 53-55, the applicant is also authorized the Army of Occupation Medal with "Germany" Clasp, the World War II Victory Medal, the Presidential Unit Citation, and to wear three bronze service stars on his European-African-Middle Eastern Campaign Medal.


5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 1 May 1946; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 April 1949.  Although the applicant did not file within the ABCMR's 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:

__LDS__  __JGH___  __JRM__  GRANT FULL RELIEF 

________  ________  ________  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 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 Purple Heart for wounds received on or about 15 January 1945.

2.  The Board further determined that, in addition to the awards listed on the WD AGO Form 53-55, the applicant is also authorized the Army of Occupation Medal with "Germany" Clasp, the World War II Victory Medal, the Presidential Unit Citation, and to wear one bronze oak leaf cluster on his Bronze Star Medal and three bronze service stars on his European-African-Middle Eastern Campaign Medal.




__   Linda D. Simmons___
          CHAIRPERSON


INDEX

CASE ID
AR20060008203
SUFFIX

RECON
 
DATE BOARDED
20070130 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.
107
2.

3.

4.

5.

6.