RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 May 2007
	DOCKET NUMBER:  AR20060015366 


	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:


Ms. Linda D. Simmons

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Eddie L. Smoot

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 correction of his military records to show his rank as staff sergeant and that he was awarded the Purple Heart. 

2.  The applicant states that he was a staff sergeant and was wounded in 1944 in the Philippine Islands in 1944.  

3.  The applicant provides copies of his Enlisted Record and Report of Separation Honorable Discharge (WD AGO Form 53-55) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 20 January 1946, the date of his discharge.  The application submitted in this case is dated 10 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 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 Enlisted Record and Report of Separation Honorable Discharge (WD AGO Form 53-55) shows that he was inducted into the Army on 29 March 1943.  His military occupational specialty was 1607 (Heavy Mortar Crewman).  He served in the Asiatic Pacific Theater from 10 October 1944 to
17 January 1946.  On 20 January 1946, he was honorably discharged.

5.  The applicant’s WD AGO Form 53-55 indicates in Item 3 (Grade) his rank as private first class.  Item 4 (Arm or Service) indicates that he was an infantry Soldier.  Item 31 (Military Qualification and Date) indicates that he qualified as a Sharpshooter with the M1 rifle in May 1944.  Item 32 (Battles and Campaigns) indicates that he served in the Luzon and Southern Philippine Campaigns.  Item 33 (Decorations and Citations) indicates that he was awarded the Asiatic Pacific Campaign Medal, American Campaign Medal, Philippine Liberation Ribbon with bronze star, Army Good Conduct Medal, and the World War II Victory Medal.  Item 34 (Wounds received in Action) indicates “None”.  Item 38 (Highest Rank Held) indicates that he had attained staff sergeant.   

6.  The applicant's WD AGO Form 100 shows his rank at separation as private first class. Under Military Occupational Assignments, it shows that he served as a private for 4 months while in basic combat training; 9 months as a private first class performing duty as a squad leader; and 20 months as a staff sergeant performing duties as a heavy mortar crewman.  As a heavy mortar crewman, he served overseas with Company L, 108th Infantry Regiment in Luzon and Southern Philippines. 

7.  War Department Form (WD Form 372) "Final Payment-Work Sheet", shows that the applicant received combat infantry pay in the amount of $26.67 for his January 1946 pay.

8.  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.

9.  War Department Circular 269-1943 established the Combat Infantryman Badge and the Expert Infantryman Badge to recognize and provide an incentive to infantrymen.  The Combat Infantryman Badge was awarded for exemplary conduct in action against the enemy.  War Department Circular 186-1944 further provided that the Combat Infantryman Badge was to be awarded only to infantrymen serving with infantry units of brigade, regimental or smaller size.  Additionally, World War II holders of the Combat Infantryman Badge received a monthly pay supplement known as combat infantry pay. Therefore, Soldiers had economic as well as intangible reasons to ensure that their records were correct. Thus, pay records are frequently the best available source to verify entitlement to this award.  

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.  Therefore, the Bronze Star Medal is to be awarded to individuals who were authorized either badge for service during World War II.  An Oak Leaf Cluster denotes a second award.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record, nor has the applicant provided any evidence to show that he received wounds as a result of hostile action, or that he was treated for any such wounds.  In the absence of such evidence, there is an insufficient basis for award of the Purple Heart in this case.

2.  The available evidence of record shows that the applicant had attained the rank of staff sergeant, and served in this rank for 20 of his 33 months of active service.  However, the record of his final pay, WD AGO Form 100, and his WD AGO Form 53-55 all indicate that his rank at time of separation was private first class.  In the absence of evidence to the contrary, the Board must presume regularity and that the applicant's rank of private first class was correct at the time of his discharge.  

3.  In view of the above, the applicant’s request for award of the Purple Heart and to show his rank as staff sergeant at separation should not be granted.
  
4.  The evidence clearly shows that the applicant was an infantryman during World War II in an infantry unit and received combat infantry pay, indicating that he had served in combat.   Therefore, his records should be corrected to show that he was awarded the Combat Infantryman Badge.

5.  Based on award of the Combat Infantryman Badge, the applicant should be awarded the Bronze Star Medal. 

6.  The FSM participated in two campaigns.  Therefore, his records should be corrected to show he is authorized two bronze service stars, to be affixed to his Asiatic Pacific Campaign Medal.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 20 January 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 

__JLP___  ___LDS_  __ELS___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial 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:

a.  awarding him the Bronze Star Medal; and

b.  showing, that in addition to the awards shown on his WD AGO Form 53-55, that his awards include the Combat Infantryman Badge, and two bronze service stars to be affixed to his Asiatic Pacific Campaign Medal.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the Purple Heart or to showing his rank as staff sergeant at the time of his separation.  




___Linda D. Simmons_____
          CHAIRPERSON




INDEX

CASE ID
AR20060015366
SUFFIX

RECON
 
DATE BOARDED
20070508
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
  . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT Partial
REVIEW AUTHORITY

ISSUES         1.
110.000 
2.
107.0015
3.

4.

5.

6.