RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 April 2007
	DOCKET NUMBER:  AR20060014323 


	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. William D. Powers 

Chairperson

Mr. William F. Crain

Member

Mr. Dale E. DeBruler

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, that he be awarded the Purple Heart.

2.  The applicant states, in effect, that according to the Purple Heart criteria he should have been awarded the Purple Heart.  

3.  The applicant provides a copy of his WD AGO Form 53-55 (Enlisted Record and Report of Separation), a copy of his honorable discharge certificate, a copy of the history of the 28th Infantry Division, a copy of the criteria for award of the Purple Heart, a copy of his rating decision by VA (Department of Veterans Affairs), a copy of his Surgeon General’s Office (SGO) Hospital Listing, from the National Personnel Records Center (NPRC), St. Louis, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 2 August 1945, the date he was separated with a Certificate of Disability for Discharge.  The application submitted in this case is dated 24 July 2006 but was received for processing on 5 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 12 January 1943 and entered active duty on 19 January 1943.  He was trained in military occupational specialty (MOS), 746, as an Automatic Rifleman.  He was assigned to the 28th Infantry Regiment.  He served in the European Theater of Operations (ETO) from 15 November 1944 to 4 April 1945.  He was honorably discharged on 2 August 1945 under the provisions of Army Regulation 615-361, with a Certificate of Disability for Discharge.  He was issued an Honorable Discharge Certificate.

4.  The applicant's WD AGO Form 53-55 shows that he was awarded the  European-African-Middle Eastern Ribbon [now known as the European-African-Middle Eastern Campaign Medal], with two bronze service stars, the Combat Infantryman Badge, and the Marksman Marksmanship Qualification Badge with Rifle Bar (M1 Rifle).  His WD AGO Form 53-55 does not show the Purple Heart as an authorized award. 

5.  Item 34 (Wounds Received in Action), of his WD AGO Form 53-55, shows the entry "18 January 45…Germany."

6.  The applicant’s provided a copy of an SGO Hospital Listing, from the NPRC, which shows that the applicant became a battle casualty on 18 January 1945, while serving in the ETO.  He was diagnosed as having a scapula fracture, compound, other with no nerve artery involvement.  He was also diagnosed as having a thigh wound (s), penetrating (point of entrance only: included incised, punctured or stab wound).  His injuries were caused by artillery shell, fragments, afoot or unspecified.  His injuries were all battle casualties, and all battle injuries not intentionally inflicted by self or another person.  He was hospitalized for 41 days.

7.  The VA decision document, dated 7 December 2002, states that the applicant was granted a 10 percent rating for anxiety neurosis (due to combat), 10 percent for Tinnitus, 0 percent for bilateral hearing loss, and a bilateral ear condition (previously denied).  He was granted a combined rating of 10 percent for his service connected conditions from 14 November 1946 and on 13 November 2001 he was granted an increase to 20 percent.  

8.  The applicant provided a copy of the history of the 28th Infantry Division and the criteria for award of the Purple Heart.

9.  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. 

10.  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.

11.  Army Regulation 600-8-22 provides, in pertinent part, for award of the World War II Victory Medal.  It is awarded for service between 7 December 1941 and 31 December 1946, both dates inclusive.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant became a battle casualty on 18 January 1945, while serving in the ETO.  He was diagnosed as having a scapula fracture and a thigh wound caused by artillery shell, fragments.  His WD AGO Form 53-55 indicated that he was wounded on 18 January 1945 in Germany.  Therefore, this evidence is sufficient to approve award of the Purple Heart and correct his records to show this award.  

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.  The applicant served on active duty during the qualifying period for award of the World War II Victory Medal.  Therefore, he is entitled to correction of his records to show this award.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 2 August 1945, the date he was separated with a Certificate of Disability for Discharge.  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:

____D___  __WDP__  __WFC_  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 18 January 1945, the Bronze Star Medal, based on award of the Combat Infantryman Badge, and the World War II Victory Medal.




______William D. Powers_____
          CHAIRPERSON




INDEX

CASE ID
AR20060014323
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070426
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19450802
DISCHARGE AUTHORITY
AR 615-361
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
107
2.

3.

4.

5.

6.