RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 September 2007
      DOCKET NUMBER:  AR20070004422


      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             |
|     |Ms. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. Jerome L. Pionk               |     |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, as the wife of the deceased former service member (FSM),
requests correction of her late husband’s records to show award of the
Purple Heart and the Bronze Star Medal.

2.  The applicant states that the FSM received a bullet wound to the left
eye.  He remained in combat with an eye patch. The FSM received disability
benefits from September 1946 until his death in 2006.

3.  The applicant provides photographs of her husband wearing his World War
II Uniform, a death certificate pertaining to the FSM from the Commonwealth
of Massachusetts Registry of Vital Records and Statistics and Certificate
of Marriage.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM's military records were 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 his records were
lost in that fire.  However, there were sufficient documents in the
reconstructed record to allow the Board to conduct a fair and impartial
review of this case.  This case is being considered using reconstructed
records that primarily consist of the applicant’s separation document.

3.  The applicant requested correction the FSM records to show award of the
Bronze Star.  There are no orders or other evidence authorizing award of
this decoration to the FSM.  In the absence of a proper award authority for
this decoration, the applicant may request award of the Bronze Star under
the provisions of section 1130 of Title 10, U. S. Code.  The applicant has
been notified by separate correspondence of the procedures for applying for
this decoration under section 1130 and, as a result, it will not be
discussed further in this Record of Proceedings.

4.  The FSM’s separation document (WD AGO Form 53-55) shows he enlisted in
the Regular Army 20 October 1942.  This document also shows the FSM held
the military occupational specialty Anti Aircraft NCO.  He continuously
served until being honorably separated on 21 November 1945.

5.  The WD AGO Form 53-55 also shows the FSM served in the European Theater
of Operations (ETO) from 16 September 1943 through 13 November 1945.
During the FSM’s tenure on active duty, he earned the European-African-
Middle Eastern Service Medal, the Good Conduct Medal and the World War II
Victory Medal.  The Purple Heart is not among the awards listed.

6.  Item 34 (Wounds Received in Action) of the applicant’s WD AGO Form 53-
55 contains the entry “None” and the FSM authenticated the separation
document with his signature in item 56 (Signature of the Person Being
Separated).

7.  There are no General Orders in the available records supporting award
of the Purple Heart.  There is also no evidence in the FSM’s military
records which show he was wounded or treated for wounds as a result of
hostile action.

8.  A search of historical files for Battery C, 377th Anti-craft Artillery
Battalion, 4th Infantry Division at the National Archives in College Park,
Maryland fail to show the FSM was awarded the Purple Heart.

9.  Army Regulation 800-8-22 (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.  There is no statue of limitations governing requests for
award of the Purple Heart.

10.  Paragraph 5-10 of the awards regulation contains guidance on award of
the Army Occupation Medal.  It states, in pertinent part, that it is
awarded for the occupation of Germany for the period between 9 May 1945 and
5 May 1955.  It further indicates that service between 9 May and 8 November
1945 will be counted only if the European-African-Middle Eastern Campaign
Medal was awarded for service before 9 May 1945.  The applicant’s unit, the
44th Artillery Battalion, 4th Infantry Division, received occupation credit
for Germany for the period 2 May to 4 June 1945.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of the FSM’s entitlement to the Purple Heart was
carefully considered.  However, by regulation, in order to support award of
the Purple Heart, there must be evidence to confirm that a member was
wounded or injured as a result of enemy action, that he was treated for the
wound or injury by military medical personnel and a record of this medical
treatment must have been made a matter of official record.

2.  The available evidence of record includes a WD AGO Form 53-55 that
contains an entry in Item 34 that indicates the FSM was not wounded or
injured as a result of combat action.  The FSM authenticated this document
with his signature.  His signature confirms he verified that the
information contained on the separation document, to include the list of
awards and the Item 34 entry, was correct at the time the document was
prepared and issued.

3.  The applicant states that her husband the FSM received disability from
1946 until his death in 2006 for an injury to the eye.  However, the
applicant does provide any evidence to show that the FSM’s injury was the
result of hostile action.

4.  The certainty of the applicant’s claim that the FSM received an injury
to the eye while serving in the ETO is not in question.  However, absent
any evidence of record to corroborate that the FSM sustained and/or was
treated for a combat related wound/injury, the regulatory burden of proof
necessary to support award of the Purple Heart has not been satisfied in
this case.

5.  Regrettably, in the absence of records prepared at the time of the
FSM’s service which show that he was wounded or injured as a result of
hostile action, there is insufficient evidence upon which to base award of
the Purple Heart in this case.

6.  Evidence of record shows the FSM met the eligibility criteria for award
of the Army of Occupation Medal with Germany Clasp.  Therefore, this award
should be added to his WD AGO Form 53-55.

7.  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

___WDP_  ___LMD _  ___JLP__  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 CMSD-
St. Louis administratively correct the records of the individual concerned
to show the Army of Occupation Medal with Germany Clasp.




                                  ___William D. Powers____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/09/26                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY with note                          |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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