RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 November 2007
	DOCKET NUMBER:  AR20070009196 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Carmen Duncan

Member

Mr. Qawiy A. Sabree

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:

	a.  award of the Purple Heart.

	b.  his grade as captain (CPT) instead of 1st lieutenant (1LT).

	c.  period of service on active duty to 5 years and 4 months. 

2.  The applicant states that:

	a.  his rank of CPT as reflected on his WD AGO Form 53-98 (Military Record and Report of Separation-Certificate of Service) is correct; however, his National Archives (NA) Form 13038 (Certificate of Military Service) shows his rank as 1LT.

	b.  the entry of "none" under Item 30 (Wounds Received in Action) of his WD AGO 53-98 is incorrect and that he spent 3 months in an unknown hospital in England for injuries received in Luxembourg.

	c.  the entry on the NA Form 13038 that shows he served during the period 15 July 1942 through 24 December 1945 is incorrect.  He further adds that he was on active duty for 5 years and 4 months, either in the Regular Army or the Army of the United States, which was no longer the National Guard.  The Colorado Army National Guard (COARNG) was mobilized on 16 September 1940 and was no longer under the command of the Governor of Colorado.

3.  The applicant provided a copy of his WD AGO Form 53-98 and a copy of his MA Form 13038 in support of his application. 

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 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.

3.  The applicant's WD AGO Form 53-98 shows that he was inducted into the Army of the United States and entered active duty on 15 July 1942.   He served in the European Theater of Operations during the period 26 August 1944 to 19 October 1945.  He was assigned to the 357th Reinforcement Company and attained the rank of 1LT.  

4.  The applicant’s WD AGO Form 100 (Separation Qualification Record) shows that he completed the Infantry Officer Candidate Course and the Armored Force Gunnery Course.  Additionally, this form confirms that he served as a 1LT, Armored Infantry Unit Commander, military occupational specialty (MOS) 1560, for a period of 39 months prior to his release from active duty on 24 December 1945.

5.  Item 3 (Rank) of the applicant's WD AGO Form 53-98 shows an entry of "Capt" and another entry underneath it that shows "1st-Lt".  However, Item 3 (Grade) of the applicant's Separation Qualification Record shows his grade upon separation as "1LT."

6.  Item 26 (Date of Entry on Active Duty) of the applicant's WD AGO 53-98 shows the applicant entered active duty on 15 July 1942 and Item 7 (Date of Relief from Active Duty) shows he was released from active duty on 24 December 1945.

7.  Item 29 (Decorations and Citations) of the applicant's WD AGO Form 53-98, shows he was awarded the American Service Medal, the World War II Victory Medal, and the European-African-Middle Eastern Service Medal.  It does not show award of the Purple Heart.

8.  Item 30 (Wounds) of the applicant's WD AGO Form 53-98 shows the entry "None" indicating that the applicant was not wounded or injured in action during his military service.

9.  An undated Physical Classification Form shows that the applicant was in fact treated at the 155th General Hospital for injuring his ankle.  The form is also annotated with the entries "restricted marching" and "no lifting." 

10.  There is no indication in the applicant's records that he received any injuries or wounds in Luxembourg or that he was treated at a military hospital in England.

11.  Item 34 (Current Tour of Active Duty) of the applicant's WD AGO Form 53-98 shows that the applicant completed 2 years and 3 months of continental service and 1 year, 2 months, and 10 days of foreign service.  

12.  Item 43 (Remarks) of the applicant's WD AGO Form 53-98 shows that the applicant is authorized the Combat Infantryman Badge.  

13.  The applicant's NA Form 13038, a non-military form, issued by the National Personnel Records Center, St. Louis, Missouri, on 20 April 2007, shows the applicant's last grade or rank as 1LT and his dates of service as 12 July 1942 to 24 December 1945.

14.  Army Regulation 672-5-1 (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 been treated by a medical officer, and the medical treatment must have been made a matter of official records.  This regulation also provides that there is no time limitation on requests for award of the Purple Heart.

15.  The applicant's records show that he is entitled to additional awards that are not listed on his WD AGO Form 53-98.

16.  Army Regulation 600-8-22 (Military Awards) 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.
17.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to correction of his records to show award of the Purple Heart, his rank of CPT, and his correct service dates.

2.  There are no general orders that show the applicant was awarded the Purple Heart.  There is no evidence in his service personnel records which shows that he was wounded or injured as a result of hostile action or treated for such wounds.  In the absence of evidence that he was wounded or injured as a result of hostile action and treated for those wounds, the applicant is not entitled to award of the Purple Heart in this case.

3.  Evidence of record shows that the applicant's grade upon separation was 1LT.  There is no evidence that he was promoted or appointed to CPT, or held a permanent grade of CPT.  Therefore, he is not entitled to correction of his records.

4.  Evidence of record shows that the applicant entered on active duty on 15 July 1942 and was released from active duty on 24 December 1945.  Those entries are correctly reflected on his WD AGO 53-98 and WD AGO 100.  Therefore, there is no further action required.

5.  Evidence of record shows that the applicant was awarded the Combat Infantryman Badge.  Therefore he is entitled to award of the Bronze Star and correction of his records to show this award. 

6.  The applicant's records show that he served within the continental United States for an aggregate period in excess of 2 years during the period between 
7 December 1941 and 2 March 1946.  Therefore, he is entitled award of the American Campaign Medal and correction of his military records to show this award.
7.  The Army Board for Military Records (ABCMR) is empowered to correct military records.  It has no authority to amend, correct, or change National Archives forms, Department of Veterans Administration forms, or General Service Administration forms.  The applicant is advised to contact the agency or department that issued his NA Form 13038 regarding any concerns with that form.

8.  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

__lds___  __cd____  __qas___  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 to show award of the American Campaign Medal and the Bronze Star Medal based on award of the Combat Infantryman Badge.



							Linda D. Simmons
______________________
          CHAIRPERSON



INDEX

CASE ID
AR20070009196
SUFFIX

RECON

DATE BOARDED
20071114
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
107.0000
2.

3.

4.

5.

6.