RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	 22 May 2007 
	DOCKET NUMBER:  AR20060015842 


	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. Hubert O. Fry

Chairperson

Mr. Thomas E. O’Shaughnessy 

Member

Mr. James R. Hastie

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 his WD AGO Form 53-55 does not list the Purple Heart as an authorized award.  He states he was injured in combat and the Purple Heart should be listed on his WD AGO Form 53-55.  He is currently receiving 10 percent disability from the Veterans Administration (VA) for an ear condition; and 0 percent for scars, both shins. 

3.  The applicant provides a copy of his WD AGO Form 53-55 and a copy of his VA disability rating in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 15 February 1946, the date of his separation from active duty.  The application submitted in this case is dated 1 November 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 and show he was inducted on 1 April 1943 and entered active duty on 8 April 1943.  He served in the European Theater of Operations (ETO) from 14 October 1944 to 9 February 1946.  While in service, he served in military occupational specialty 060, as a Cook.  He was honorably separated on 15 February 1946.

4.  The applicant’s WD AGO Form 53-55 shows that he was credited with participation in three campaigns of World War II.  He was awarded the American Service Medal, the European-African-Middle Eastern Campaign Medal, the Good Conduct Medal, and the World War II Victory Medal.  His WD AGO Form 53-55 does not show the Purple Heart.  

5.  Item 34 (Wounds Received in Action), of his WD AGO Form 53-55, shows the entry "None."  There is no record that the applicant was awarded the Purple Heart.  There also is no evidence in his records to show he was wounded or treated for wounds as a result of hostile action

6.  A review of his WD AGO Form 24 (Service Record) and WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty or Retirement) failed to indicate that he received any wounds or injuries during his service or that he was treated for such prior to his separation from active duty.

7.  The applicant provides a copy of his award of disability compensation, dated 27 October 1948, which shows that he was granted a 10 percent service-connected disability for an ear condition and his scars, both shins, remained less than 10 percent, and was therefore, not compensable. 

8.  The applicant's medical records are unavailable for review.

9.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against the enemy or 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.  While the applicant was serving in the ETO he participated in the Ardennes-Alsace, Central Europe, and Rhineland campaigns. 

11.  Army Regulation 600-8-22 (Military Awards), in pertinent part, authorizes award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal. 


12.  Department of the Army Pamphlet 672-1 shows, among other information, occupation credit awarded to units during World War II.  This document shows the unit to which the applicant was assigned, the 308th Field Artillery Battalion, 78th Infantry Division, was awarded occupational credit for the occupation of Germany for the period from 2 May 1945 to 31 October 1945.

DISCUSSION AND CONCLUSIONS:

1.  The VA disability compensation, dated 27 October 1948, shows that he was granted a 10 percent service-connected disability for a right ear condition.  However, there is no evidence of record which shows that he was injured or wounded in combat due to hostile action during World War II.  Therefore, the evidence presented does not qualify for award of the Purple Heart.  

2.  There are no orders officially awarding the applicant the Purple Heart and there are no medical records available to show that he was treated for a wound as a result of hostile action.  Therefore, there is an insufficient basis to approve an award of the Purple Heart.

3.  The applicant's WD AGO Form 53-55 shows that he was awarded the EAME Campaign Medal.  However, he participated in three campaigns, such as the Ardennes, Central Europe, and Rhineland, and he is therefore, entitled to three bronze service stars to be affixed to the already-awarded EAME Campaign Medal.

4.  The evidence of record shows that the applicant's unit of assignment served a period of qualifying service for award of the Army of Occupation Medal, with Germany Clasp.  He is therefore entitled to correction of his records to show this award. 

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 15 February 1946, the date of his separation from active duty.  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, 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.

6.  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 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__HOF___  ___TEO_  _JRH___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  The Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned by awarding the applicant the European-African-Middle Eastern Campaign Medal, with three bronze service stars; and the Army of Occupation Medal, with Germany Clasp; and adding these awards to his WD AGO Form 53-55.




_____Hubert O. Fry______
          CHAIRPERSON



INDEX

CASE ID
AR20060015842
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070522
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19460215
DISCHARGE AUTHORITY
AR 615-365
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
107
2.

3.

4.

5.

6.