RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2007
	DOCKET NUMBER:  AR20060013583 


	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. Gerard W. Schwartz

Acting Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Ms. LaVerne M. Douglas

Member

Ms. Ernestine I. Fields

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, correction of his Enlisted Record and Report of Separation Honorable Discharge (WD AGO Form 53-55) to show award of the Purple Heart for injuries received during World War II. 

2.  The applicant states, in effect, that he served with the 291st Infantry Regiment, 75th Infantry Division and was injured when his jeep and trailer hit a shell hole at 10:00 p.m. causing him to be thrown from the vehicle.  His 200 pound buddy was also thrown from the vehicle and landed on him.

3.  The applicant provides copies of his WD AGO Form 53-55 and an extracted page from Army Regulation 600-8-22 (Military Awards).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 11 March 1946, the date of his discharge.  The application submitted in this case is dated 15 September 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 for review.  A fire destroyed approximately 18 million service member's records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, there are sufficient documents available to conduct a fair and impartial review of this specific request.

4.  The applicant's WD AGO Form 53-55 shows that he was inducted into the Army of the United States on 14 July 1943.  His military occupational specialty was 274 (Information Specialist).   He served in the European-African-Middle Eastern Theater from 22 October 1944 to 26 February 1946 with Company M, 291st Infantry Regiment.  On 11 March 1946 he was honorably discharged.


5.  Item 31 (Military Qualification and Date) of the applicant's WD AGO Form 
53-55 shows that he was awarded the Combat Infantryman Badge.

6.  Item 32 (Battles and Campaigns) of the applicant's WD AGO Form 53-55 shows that he participated in the Ardennes, Rhineland, and Central Europe Campaigns.

7.  Item 33 (Decorations and Citations) of the applicant's WD AGO Form 53-55 shows that he was awarded the American Campaign Medal, European-African-Middle Eastern Theater Medal with three bronze service stars, Army Good Conduct Medal, and the World War II Victory Medal.  It does not show award of the Purple Heart or the Army of Occupation Medal.

8.  Item 34 (Wounds Received in Action) of the applicant's WD AGO Form 53-55 shows "None."

9.  There is no available evidence showing that the applicant was hospitalized as a result of wounds or injuries sustained while serving in the European Theater of Operations.

10.  Army Regulation 600-8-22 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. 

11.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving during World War II.  This publication shows that the 291st Infantry Regiment, during the time the applicant's assignment, received occupation credit for Germany. 

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 Germany, service must have been between 9 May 1945 and 
5 May 1955.




DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record that shows he was ever wounded or injured as a result of hostile action.  There is no evidence to show that he was ever treated for any such wounds or injuries.

2.  Furthermore, the applicant's description of how he was injured indicates that he was hurt as the result of a vehicle accident and not by enemy action.

3.  In view of the above, the applicant's request should not be granted.

4.  The applicant served in a qualifying location during a qualifying period of time for award of the Army of Occupation Medal with Germany Clasp.  Therefore, his records should be corrected to show this award.

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 or injustice now under consideration on 11 March 1946, the date of his separation 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.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence, it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__KLW__  __LMD__  ___EF ___  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 concerned 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 shown on his WD AGO Form 53-55, his authorized awards include the Army of Occupation Medal with Germany Clasp.





__    Kenneth L. Wright_____
          CHAIRPERSON




INDEX

CASE ID
AR20060013583
SUFFIX

RECON
 
DATE BOARDED
20070410
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
107.015
2.

3.

4.

5.

6.