RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 April 2007
	DOCKET NUMBER:  AR20060013915 


	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.


x

	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 (PH). 

2.  The applicant states, in effect, that he was wounded in the Battle of the Bulge at Bastogne, Belgium.  He further states that he is now seeking to be awarded the PH for the wounds he received, for which he is now receiving a pension.

3.  The applicant provides no additional documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 25 June 1945.  The application submitted in this case is dated 
22 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 to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.  This case is being considered using reconstructed records that primarily consist of the applicant’s separation document (WD AGO 53-55).

4.  The applicant’s WD AGO Form 53-55 shows he entered active duty on 
2 November 1940, and continuously served for 4 years, 5 months and 24 days until being honorably separated on 25 June 1945.  It also shows that he served in the American Theater of Operations from 31 December 1940 through 
11 December 1943, and that he served in the European Theater of Operations (ETO) from 19 September 1944 through 8 June 1945, and was assigned to the 44th Armored Infantry Battalion.  

5.  Item 31 (Military Qualifications) of the applicant's WD AGO Form 53-55 shows he earned the Combat Infantryman Badge (CIB) and Item 32 (Battles and Campaigns) shows he participated in the Rhineland campaign.  Item 33 (Decorations and Citations) shows that during his active duty tenure, he earned the American Defense Service Medal with Star, American Campaign Medal, and European-African-Middle Eastern Campaign Medal.  Item 34 (Wounds Received in Action) contains the entry “None”, and the applicant authenticated this document with his signature in Item 56 (Signature of Person Being Separated) on 25 June 1945, the date of his separation.  

6.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to award a PH there must be evidence that a member was wounded or injured as a result of enemy action.  The wound or injury for which the PH is being awarded must have required treatment by a medical officer; this treatment must be supported by medical treatment records that were made a matter of official record.  

7.  Paragraph 3-13 of the awards regulation contains guidance on the Bronze Star Medal (BSM).  Paragraph 3-13d (2) states, in effect, that the BSM is authorized to members of the Armed Forces of the United States who, after
6 December 1941, were cited in orders or awarded a certificate for exemplary conduct in ground combat against an armed enemy between 7 December 1941 and 2 September 1945.  This paragraph also stipulates that for this purpose, an award of the CIB is considered as a citation in orders.  

8.  Paragraph 5-11 of the awards regulation contains guidance on the World War II Victory Medal.  It states, in pertinent part, that it is authorized to members who served between 7 December 1941 and 31 December 1946.  

9.  Department of the Army (DA) Pamphlet 672-1 (Unit Campaign Participation Credit Register-World War II) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during World War II.  It confirms that during his tenure of assignment, the applicant’s unit (44th Armored Infantry Battalion) received the Army of Occupation Medal with Germany Clasp and campaign credit for the Central Europe, Ardennes-Alsace, and Rhineland campaigns.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of entitlement to the PH was carefully considered.  However, by regulation, in order to support award of the PH, there must be evidence confirming that the wound for which the award is being made was received as a result of enemy action, that the wound was treated by military medical personnel, and a record of this treatment must have been made a
matter of official record.   

2.  The applicant's WD AGO Form 53-55 contains the entry "None" in Item 34, which indicates he was never wounded in action, and the PH is not included in the list of authorized awards contained in Item 33.  The applicant authenticated this document with his signature on the date of his separation.  In effect, his signature was his verification that the information contained on the separation document, to include the entries in Item 33 and Item 34, was correct at the time the document was prepared and issued.  The veracity of the applicant’s claim of entitlement to the PH is not in question.  However, absent evidence (medical treatment records, record entries etc.) that confirms he was wounded as a result of enemy action and/or that he was treated for a combat related wound while serving on active duty, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case. 

3.  Records show the applicant should have discovered the alleged error or injustice related to award of the PH on 25 June 1945, the date of his separation from active duty.  Therefore, based on the date the Board was established 
2 January 1947, the time for him to file a request for correction of any error or injustice expired on 1 January 1950.  He failed to file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

4.  The evidence does show that based on his having earned the CIB, the applicant is entitled to the BSM for his exemplary conduct in ground combat against an armed enemy in the ETO from 19 September 1944 through 8 June 1945.  It further shows he is entitled to World War II Victory Medal based on his World War II service.  Based on his service and campaign participation (Central Europe, Ardennes-Alsace, and Rhineland) he is also entitled to the Army of Occupation Medal with Germany Clasp and 3 bronze service stars with his European-African-Middle Eastern Campaign Medal.  The omission of this information from the applicant's separation is an administrative matter that does not require Board action.  Therefore, the Case Management Support Division (CMSD), St. Louis, Missouri, will correct his records as outlined in paragraph 3 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

x__  ___x    __x    DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice related to award of the Purple Heart.  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 by awarding him the Bronze Star Medal based on his having earned the Combat Infantryman Badge during World War II; by amending Item 32 (Battles and Campaigns) of his WD AGO Form 53-55 by adding the Central Europe and  Ardennes-Alsace campaigns; by showing his entitlement to the Army of Occupation Medal with Germany Clasp and 3 bronze service stars with his European-African-Middle Eastern Campaign Medal; and by providing him a correction to his separation document that includes these changes.  




_____x___
          CHAIRPERSON




INDEX

CASE ID
AR20060013915
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/04/05
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1945/06/25
DISCHARGE AUTHORITY
AR . .    
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
107
2.

3.

4.

5.

6.