RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 March 2007
	DOCKET NUMBER:  AR20060010884 


	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. David S. Griffin

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Scott W. Faught

Member

Mr. Roland S. Venable

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, award of the Purple Heart.

2.  The applicant describes his tour of duty with the 153rd Field Artillery Battalion in the European Theater of Operations (ETO).  The applicant states, in effect, that he was hit in the left forearm by shrapnel from German artillery fire.  The applicant also states that the two witnesses who where there are now deceased.

3.  The applicant provides copies of his:

	a.  WD AGO Form 53-55 (Enlisted Record and Report of Separation, Honorable Discharge) with a date of separation of 9 December 1945;

	b.  WD AGO Form 100 (Separation Qualification Record); and

	c.  Honorable Discharge Certificate dated 9 December 1945.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred 
on 9 December 1945, the date of his discharge.  The application submitted in this case is dated 21 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 applicant’s military records were lost or destroyed in a fire at the National Personnel Records Center in 1973.  The records available to the Board 
were provided by the applicant and are sufficient for the Board to conduct a fair and impartial review of this case.  The primary records available to this Board are the applicant’s WD AGO Form 53-55 and his WD AGO Form 100.

4.  The available records show the applicant entered active service on 
5 September 1942.  He arrived in the ETO on 15 May 1944 and departed the ETO on 20 November 1945, a period of 1 year, 6 months, and 6 days.

5.  The record shows the applicant was assigned to the 153rd Field Artillery Battalion for 18 months.

6.  On 9 December 1945, the applicant was discharged due to demobilization.  He had completed 3 years, 3 months, and 5 days of active service that was characterized as honorable.

7.  Item 33 (Decorations and Citations) of the applicant’s WD AGO Form 53-55 does not contain an entry for the Purple Heart.

8.  Item 34 (Wounds Received in Action) of the applicant’s WD AGO Form 53-55 contains the entry “NONE.”

9.  The applicant's records show that he is entitled to additional awards, which he did not request and are not listed on his WD AGO Form 53-55.

10.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) lists campaign participation credit, assault landing credit, unit citation emblems, and occupation duty credit for World War II and for the Korean War.  This document shows that, at the time of the applicant’s assignment to the 153rd Field Artillery Battalion, the unit received occupation credit in Germany for the period from 20 May 1945 to 19 September 1945.  

11.  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 required treatment, and the medical treatment must have been made a matter of official record.  This regulation also provides that there is no time limitation on requests for award of the Purple Heart.

12.  Army Regulation 600-8-22 provides, in pertinent part, that the Army of Occupation Medal is awarded for service of thirty consecutive days at a normal post of duty in a qualifying location.  Personnel at a qualifying location as an inspector, courier, escort, temporary or detached duty are precluded from eligibility.  For award of the Army of Occupation Medal with Germany clasp, qualifying service must have occurred between 9 May 1945 and 5 May 1955 and the European-African-Middle Eastern Campaign Medal must have been awarded prior to 9 May 1945.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has provided a detailed account of the events he experienced during his tour of duty in the ETO.  However, there is no corroborating official documentation or evidence to show he was wounded or treated for wounds resulting from hostile action.

2.  In the absence of military records, which show the applicant was wounded or injured or treated for wounds or injuries as a result of hostile action, there is insufficient basis for award of the Purple Heart in this case.

3.  The evidence shows the applicant was assigned to the 153rd Field Artillery Battalion the entire period he was in the ETO.  Therefore, the applicant is entitled to the Army of Occupation Medal with Germany clasp.

4.  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.

5.  Records show the applicant should have discovered the error or injustice now under consideration on 9 December 1945, the date of his discharge.  However, the ABCMR was not established until 2 January 1947.  Therefore, 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 in this case based on the fact there is no time limitation on requests for award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___jea___  ___rsv__  ___swf___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that it is 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.

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 award of the Army of Occupation Medal with Germany clasp.





__________James E. Anderholm_____
          CHAIRPERSON




INDEX

CASE ID
AR20060010884
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007036
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.