RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  22 February 2007
	DOCKET NUMBER:  AR20060010635 


	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. Andrew C. Jacobs

Analyst

The following members, a quorum, were present:


Mr. Mark Manning

Chairperson

Mr. John Meixell

Member

Mr. Qawly Sabree

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 essentially states that during the Battle of the Bulge, he had an occasion to go to an Aid Station, and was asked if he wanted the Purple Heart.  He also states that after looking around at all of the very badly wounded, he declined award of the Purple Heart.  He continues by stating, in effect, that he now wishes that he had not declined award of the Purple Heart, as his priority with the Department of Veterans Affairs would be slightly higher. 

3.  The applicant provides his WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge), Honorable Discharge Certificate, a letter and a privacy authorization form from a Member of Congress, and a self-authored statement in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 
22 January 1946, the date of his release from active duty.  The application submitted in this case is dated 25 July 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 majority of the applicant’s military records are not available for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the majority of the applicant's records were lost or destroyed in that fire.  This case is primarily being processed using documents provided by the applicant.

4.  The applicant’s WD AGO Form 53-55 shows that he entered active duty in the Army of the United States on 4 May 1943.  He departed for the European Theater of Operations on 14 October 1944, and served with the 2nd Battalion, 309th Infantry Regiment.  He participated in the Ardennes, Rhineland, and Central Europe campaigns during World War II.  He departed the European Theater of Operations on 3 January 1946, and returned to the continental United States on 16 January 1946.  On 22 January 1946, he was honorably released from active duty.  The WD AGO Form 53-55 that was issued to him at the time of his release from active duty essentially shows that he was awarded the Good Conduct Medal, the World War II Victory Medal, the American Campaign Medal, the European-African-Middle Eastern Campaign Medal with three bronze service stars, and the Combat Infantryman Badge.

5.  Item 33 (Decorations and Citations) of the applicant’s WD AGO Form 53-55 does not reflect award of the Purple Heart.  Item 34 (Wounds Received in Action) of the applicant’s WD AGO 53-55 contains the entry "None."

6.  There are no medical records on file that show the applicant sustained wounds as a result of hostile action or that show he was treated for wounds sustained as a result of hostile action.  

7.  The applicant did not provide any evidence such as his WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release From Active Duty, or Retirement), which would have listed all of his significant diseases, wounds, and injuries, and which would have contained an entry that showed that he was wounded as a result of hostile action.

8.  The applicant essentially stated that he had an occasion to go to an Aid Station, and was asked if he wanted the Purple Heart.  He also stated that after looking around at all of the very badly wounded, he declined award of the Purple Heart.  

9.  During a review of the applicant’s records, it was determined that he is entitled to additional awards and decorations that are not shown on his WD AGO Form 53-55.

10.  The applicant’s WD AGO Form 53-55 shows that he was awarded the Combat Infantryman Badge, but it does not show that he was awarded the Bronze Star Medal based upon award of the Combat Infantryman Badge.  However, his military records show that he was awarded the Bronze Star Medal based upon award of the Combat Infantryman Badge on 3 August 1990.

11.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) identifies, in pertinent part, occupation credit for units during World War II.  It shows that at the time of the applicant’s assignment to the 309th Infantry Regiment, it was cited for occupation credit in Germany from 2 May 1945 to 31 October 1945.  
12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained 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 been treated by a medical officer, and the medical treatment must have been made a matter of official records.  This regulation also provides that there is no time limitation on requests for award of the Purple Heart.

13.  Army Regulation 600-8-22 also provides, in pertinent part, that the Army of Occupation Medal is awarded for service in Germany (exclusive of Berlin) between 9 May 1945 and 5 May 1955, and that service between 9 May 1945 and 
8 November 1945 will be counted only if the European-African-Middle Eastern Campaign Medal was awarded for service before 9 May 1945.  It further states that Soldiers who served in the European Theater during the occupation of Europe will wear the clasp inscribed "Germany."

DISCUSSION AND CONCLUSIONS:

1.   The applicant contends that he should be awarded the Purple Heart.

2.  While the Board does not doubt the veracity of the applicant’s claim to entitlement to award of the Purple Heart, there is no evidence in the available records, and the applicant has failed to provide any evidence which conclusively shows that he sustained wounds as a result of hostile action, and that treatment for any wounds was made a matter of official record.  Regrettably, absent such evidence, there is insufficient basis for awarding the Purple Heart to the applicant in this case.

3.  The applicant was awarded the Bronze Star Medal based upon award of the Combat Infantryman Badge which is not shown on his WD AGO Form 53-55.  Therefore, he is entitled to correction of his military records to show the award of the Bronze Star Medal based upon award of the Combat Infantryman Badge.

4.  The applicant’s unit in World War II was credited with occupation credit in Germany.  He also was awarded the European-African-Middle Eastern Campaign Medal for service before 9 May 1945.  Therefore, he is entitled to award of the Army of Occupation Medal with Germany Clasp, and correction of his military records to show the award of the Army of Occupation Medal with Germany Clasp.


5.  Evidence shows that the applicant’s records contain 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 3 of the BOARD DETERMINATION/RECOMMENDATION section below.

6.  Records show the applicant should have discovered the alleged error now under consideration on 22 January 1946, the date of his release 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's statute of limitations, it is appropriate to waive failure to timely file based on the fact there are no time limitations on requests for award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___MM __  ___JM __  __QS___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that it was appropriate to waive failure to timely file in this case.

2.  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 to show award of the Purple Heart.

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 by:

a.  showing the award of the Bronze Star Medal based upon award of the Combat Infantryman Badge; and
b.  awarding him the Army of Occupation Medal with Germany Clasp. 

4.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during World War II.  The applicant and all Americans should be justifiably proud of his service in arms.




_____ Mark Manning_______
          CHAIRPERSON




INDEX

CASE ID
AR20060010635
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070222
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY WITH ADMIN NOTE
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
107.0015.0000
2.
107.0014.0000
3.
107.0067.0000
4.
110.0400.0000
5.

6.