RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 April 2007
	DOCKET NUMBER:  AR20060014061 


	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

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Curtis L. Greenway 

Chairperson

Mr. Michael J. Flynn

Member

Mr. Edward E. Montgomery

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 WD AGO Form 53-55 (Enlisted Record and Report of Separation) to show that he was awarded the Purple Heart.

2.  The applicant states, in effect, that the Purple Heart was not listed on his WD AGO Form 53-55.  He adds that he has records of being wounded at Notre Dame D’Elle France on 28 July 1944.  

3.  The applicant provides a copy of WD AGO Form 53-55 and a copy of his personal military service record in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 30 December 1945, the date of his release from active duty.  The application submitted in this case is dated 25 September 2006 but was received for processing on 3 October 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.  Records available to the Board were obtained from alternate sources.  His WD AGO Form 53-55 shows that he was inducted on 16 July 1943 and entered active duty on 30 July 1943.  He was trained in military occupational specialty (MOS), 745, as a Rifleman.  He was assigned to Headquarters Company, 3rd Battalion, 156th Infantry.  He served in the European Theater of Operations (ETO) from 17 January 1944 to 24 December 1945.  He was honorably separated on 30 December 1945.




4.  The applicant's WD AGO Form 53-55 shows that he was awarded the World War II Victory Medal and the European-African-Middle Eastern Service Medal [European-African-Middle Eastern Campaign Medal], with two bronze service stars, the Marksman Marksmanship Qualification Badge with Rifle and Carbine Bars, and the Combat Infantryman Badge.  His WD AGO Form 53-55 does not show the Purple Heart as an authorized award. 

5.  Item 34 (Wounds Received in Action With Enemy Forces), of his WD AGO Form 53-55, shows the entry "Notre Dame d'Elle France 28 Jul 44."

6.  The applicant provides a copy of his personal military service record, dated 30 December 1945, which shows that he was wounded at Notre Dame D’Elle France on 28 July 1944.  This record is unofficial.  It has no form number, no seal, and no signature.  

7.  The applicant’s records contain a copy of a Surgeon General’s Office (SGO) Hospital Listing, which show that the applicant became a battle casualty in July 1944, while serving in the ETO.  He was diagnosed as having a penetrating wound to his knee region - popliteal space that was caused by artillery shell fragments.  His injury was considered a battle casualty or battle injury, other than self-inflicted injury, or injury unintentionally inflicted by another person.  He was hospitalized for 106 days.

8.  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.  This regulation also provides that there is no statute of limitations on requests for award of the Purple Heart. 

9.  Army Regulation 600-8-22 provides, in pertinent part, that 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 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.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant became a battle casualty in July 1944 while serving in the ETO.  He was diagnosed as having a penetrating wound to his knee region that was caused by artillery shell fragments.  His WD AGO Form 53-55 indicated that he was wounded at Notre Dame D'Elle France on 28 July 1944.  Therefore, this evidence is sufficient to approve and correct his records to show the award of the Purple Heart.  

2.  Based upon the special provisions of the awards regulation which considers award of the Combat Infantryman Badge a citation in orders, the applicant is entitled to award of the Bronze Star Medal, and to have this award added to his WD AGO Form 53-55.

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 December 1945, the date of his release from AD.  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 ABCMR's 3-year statute of limitations.  However, since award of the Purple Heart is not governed by a statute of limitations, it is appropriate to waive failure to timely file in this case.

BOARD VOTE:

___EM___  ___CLG_  ___MJF_  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION










BOARD DETERMINATION/RECOMMENDATION:

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 in action on 28 July 1944 and the Bronze Star Medal, based on award of the Combat Infantryman Badge.




_____Curtis L. Greenway ____
          CHAIRPERSON




INDEX

CASE ID
AR20060014061
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070412
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19451230
DISCHARGE AUTHORITY
AR 615-365
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
107
2.

3.

4.

5.

6.