RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 September 2007
	DOCKET NUMBER:  AR20070006598 


	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:


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 son of a deceased former service member (FSM), requests correction of his late father's records to show award of the Purple Heart. 

2.  The applicant states, in effect, that the FSM was awarded the Purple Heart for receiving an ankle wound during the European-African-Middle Eastern campaign with the U.S. 3rd Army.  As a young boy he held the medal in his hand.  The FSM gave his country distinguished service, he was at Pearl Harbor when it was attacked, landed in the Normandy Invasion, and fought in the Battle of the Bulge.

3.  The applicant provides a WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge); with the period ending 6 July 1945; a City of New York Department of Health, Bureau of Vital Records Certificate of Death, dated 4 March 1970; and a Bureau of Records and Statistics, Department of Health City of New York Certificate of Birth, dated 22 May 1952.

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 enlisted and entered active duty on 8 March 1940 and successfully completed basic training and advanced individual training

3.  On 1 May 1940, the FSM departed the United States for duty in the Asiatic Pacific Theater of Operations.  He arrived in the Asiatic Pacific Theater of Operations on 7 May 1940.  He was assigned to the 1st Battalion, 41st Coast Artillery Regiment, Schofield Barracks, Hawaii.  On 6 May 1943, the FSM departed the Asiatic Pacific Theater of Operations.  He arrived in the United States on 14 May 1943.

4.  On 21 June 1944, the FSM departed the United States for duty in the European Theater of Operations.  He arrived in the European Theater of Operations on 29 June 1944.  He was assigned to B Battery, 390th Antiaircraft Artillery Automatic Weapons Battalion.  On 22 June 1945, the FSM departed the European Theater of Operations.  He arrived in the United States on 30 June 1945.

5.  Item 11 (List all significant diseases, wounds, and injuries.  State circumstances under which wounds or injuries were incurred and date of onset) of the FSM's WD AGO Form 33 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty or Retirement), dated 
5 July 1945, contains the entry "NO HISTORY OF MALARIA OR SYPHILIS."  Item 15 (Skin) shows no abnormalities noted.

6.  On 6 July 1945, the FSM was honorably discharged.  

7.  The FSM's WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge), dated 6 July 1945, shows he was awarded the American Defense Service Medal with one bronze service star, the Asiatic-Pacific Campaign Medal, the European-Africa-Middle Eastern Campaign Medal, the Army Good Conduct Medal, the Marksman Marksmanship Qualification Badge (M-1 Rifle), and the Expert Marksmanship Qualification Badge (Carbine Rifle).  Item 34 (Wounds Received in Action) contains the entry "NONE."

8.  There are no General Orders in the FSM's records that show he was awarded the Purple Heart.

9.  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.  

10.  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.

11.  Army Regulation 600-8-22 provides, in pertinent part, for award of the American Campaign Medal.  This campaign medal is awarded for qualifying service in the American Theater between 7 December 1941 and 2 March 1946.  Qualifying service for this campaign medal includes permanent assignment outside the continental United States but within the American Theater of Operations, duty as a crewmember aboard a vessel sailing ocean waters for      30 consecutive or 60 nonconsecutive days, or duty outside the continental United States as a passenger or in a temporary duty status for 30 consecutive or          60 nonconsecutive days, or active combat against the enemy and was awarded a combat decoration or furnished a certificate by a corps commander or higher, or service within the continental United States for an aggregate period of one year.

DISCUSSION AND CONCLUSIONS:

1.  There are no orders in the FSM's service personnel records that show he was awarded the Purple Heart.  There is no evidence in the available records and the applicant has not provided evidence, such as eyewitness accounts from the FSM's chain of command at the time or medical personnel who treated his wounds, that shows the FSM was wounded or treated for wounds as a result of hostile action.  

2.  The FSM's separation physical in July 1945 did not mention his being treated for wounds nor is there an entry to show that he was treated for ankle wounds.

3.  Regrettably, in the absence of military records which show the FSM was wounded or treated for wounds as a result of hostile action there is insufficient basis for award of the Purple Heart in this case.

4.  The FSM met the eligibility criteria for award of the World War II Victory Medal and the American Campaign Medal.  The FSM’s WD AGO Form 53-55 should be amended to add these awards.

5.  Evidence shows that the FSM’s records contain administrative errors which do not require action by the Board.  Therefore, administrative correction of the FSM’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 errors in the records of the FSM should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned by amending the his WD AGO Form 53-55 with the ending period 6 July 1945 to show award of the World War II Victory Medal and the American Campaign Medal.




____William D. Powers__
          CHAIRPERSON




INDEX

CASE ID
AR20070006598
SUFFIX

RECON

DATE BOARDED
25 SEPTEMBER 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.