RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 June 2007
	DOCKET NUMBER:  AR20060017201 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Ms. Margaret K. Patterson

Chairperson

Ms. Ronald D. Grant

Member

Ms. Rowland C. Heflin

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 records to show award of the Purple Heart 2nd Award. 

2.  The applicant states, in effect, that he was wounded during the D-Day Invasion in the left hand and thigh.  He was bandaged up by a medic who stopped the bleeding and was sent back to his foxhole.  There was not enough time for further treatment with combat all around.  Helping to keep other Soldiers alive was more important than further medical treatment, which he declined so that he could get back to his mission.

3.  The applicant provides a WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active duty or Retirement), dated 6 July 1945.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 
7 July 1945.  The application submitted in this case is dated 30 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 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, this case is being considered using reconstructed records, which primarily consist of his WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge) and WD AGO Form 38.

4.  The applicant's WD AGO Form 53-55 with the ending period 7 July 
1945 shows he was inducted and entered active duty on 3 March 1942.  On 
29 April 1943, he departed the United States for duty in the North African Theater of Operations.  He arrived in the European Theater of Operations on 9 December 1943.  His military occupational specialty was 677 (Military Policeman).  He was assigned to the 82nd Airborne Division.

5.  The applicant's records contain a Western Union telegram that was addressed to his wife informing her that her husband had been missing in action since 23 September 1944.  

6.  The Awards Branch of the U.S. Army Human Resources Command (USAHRC) confirmed the applicant was captured by enemy forces and was a prisoner of war (POW) from 23 September 1944 until his release on 1 March 1945.  

7.  A WD AGO Form 38, dated 6 July 1945 shows that the applicant was being separated.  Item 11 (List all significant diseases, wounds, and injuries) shows that he indicated he was wounded in action from shrapnel in left hand, no treatment and concussion due to shell blast, no treatment.

8.  The applicant was honorably separated on 7 July 1945.

9.  Item 33 (Decorations and Citations) shows the applicant was awarded the European-African-Middle Eastern Theater Campaign Ribbon with 4 bronze service stars, the Army Good Conduct Medal, and the Purple Heart [per Affidavit Camp Atterbury, Indiana, April 1945].  Item 34 (Wounds Received in Action) contains the entry "Not Available."

10.  There are no General Orders in the applicant's records that show he was awarded the Purple Heart 2nd Award.

11.  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.  When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.  This regulation also provides that there is no statute of limitations on requests for award of the Purple Heart.

12.  The POW Medal was authorized on 8 November 1985 and is awarded to individuals who in past armed conflicts were taken prisoner or held captive.  Past 

conflict in this instance means only World War I, World War II, the Korean War and the Vietnam War.  Hostages of terrorists and persons held by governments with which the United States is not engaged in armed conflict are not eligible.

13.  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.  There are no orders in the applicant's service personnel records that show he was awarded the Purple Heart 2nd Award.  There is no evidence in the available records and the applicant has not provided evidence that shows he was wounded or treated for wounds as a result of hostile action during the D-Day Invasion.  To the contrary, the WD AGO Form 38 shows that he did not receive treatment for wounds to his left hand, and shows no wounds to his thigh.

2.  Since the WD AGO Form 38 was prepared prior to the WD AGO 53-55, and the Purple Heart was awarded per affidavit at the time of his discharge from the Army, it appears the wounds listed on the WD AGO Form 38 were taken into consideration when the Purple Heart was authorized.  Regrettably, there is insufficient basis for award of the Purple Heart 2nd Award in this case.  

3.  The evidence of record clearly shows that the applicant was a POW. Therefore, his records should be corrected to show award of the Prisoner of War Medal.

4.  Evidence of records shows that the applicant is eligible for award of the World War II Victory Medal.  Therefore, his WD AGO Form 53-55 should be corrected to add this award.

5.  Evidence shows that the applicant’s records contain administrative errors which do 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.

6.  Records show the FSM should have discovered the alleged error or injustice now under consideration on 7 July 1945.  However, the ABCMR was not established until 2 January 1947.  Therefore, the time for the applicant to file a request for correction of any error or injustice expired on 1 January 1950.  
Although the applicant did not file within the ABCMR's statute of limitations, it is appropriate to waive failure to timely file in this case based on the fact there is no statute of limitations on requests for award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__MKP  _  __RDG__  ___RCH_  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 errors 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 to show award of the Prisoner of War Medal and the World War II Victory Medal.




__ Margaret K. Patterson __
          CHAIRPERSON




INDEX

CASE ID
AR20060017201
SUFFIX

RECON

DATE BOARDED
14 JUNE 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
107.0015.0000
2.

3.

4.

5.

6.