RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  03 January 2008
	DOCKET NUMBER:  AR20070009574 


	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. Jeanne Marie Rowan

Analyst


The following members, a quorum, were present:


Ms. Ann M. Campbell

Chairperson

Mr. Dean A. Camarella

Member

Mr. Rodney E. Barber

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 award of the Purple Heart.

2.  The applicant states, in effect, that he was wounded on 5 January 1945 while assigned to Company A, 141st Infantry Regiment in France during combat offensive operations.  He states he was awarded the Silver Star for his gallantry on 23 April 1945 and he further states that the citation clearly shows he was wounded by enemy gunfire.

3.  The applicant provides a copy of his Silver Star award order, a supporting newspaper article, and a copy of a mail gram from the commanding general notifying and congratulating the applicant's mother that he had been recognized and awarded the Silver Star for his gallant actions during combat operations. 

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 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, there are sufficient documents for the Board to conduct a fair and impartial review of this case.  The primary record available to this Board is the applicant’s WD AGO Form 53-55 (Enlisted Record and Report of Separation and Honorable Discharge).  

3.  The available record shows the applicant entered active service on 9 June 1944.  The applicant arrived in the European-African-Middle-Eastern Theater of Operations on 27 November 1944.  He participated in the Rhineland Campaign (15 September 1944 to 21 March 1945) and the Central Europe Campaign (22 March 1945 to 11 May 1945).  He departed the theater and returned to the Continental United States on 18 June 1946.

4.  A record of the units to which the applicant was assigned and the dates of his assignment were not available for the Board to review.  The applicant's WD AGO Form 53-55 shows he was assigned to Company A, 141st Infantry Regiment, 36th Infantry Division at the time of his discharge. 

5.  On 23 June 1946, the applicant was discharged for the convenience of the government due to demobilization. 

6.  Item 31 (Military Qualifications and Date) of the applicant's WD AGO Form
53-55 shows the applicant was awarded the Combat Infantryman Badge and the Marksman Marksmanship Qualification Badge with Rifle Bar.

7.  Item 33 (Decorations and Citations) of the applicant's WD AGO Form 53-55 does not contain an entry for award of the Purple Heart.  

8.  Item 34 (Wounds Received in Action) of the applicant's WD AGO Form 53-55 contains the entry "None."

9.  The historical Hospital Admission Card files from 1942 to1945 published by the Office of the Surgeon General, Department of the Army, maintained since 1988 by the National Personnel Records Center of the National Research Council shows that the applicant received medical care by military medical treatment personnel on an unknown date in December 1944 and on 17 January 1945.  In December 1944, he was treated for acute nasopharyngitis, which was classified as a disease, non-battle injury.  On 17 January 1945, he received treatment for synovitis, which was classified as a disease, non-battle injury.   There is no record available to show the applicant received medical care for fragmentary wounds or burns to his back.  

10.  Adjutant General Order Number 200.6, dated 23 April 1945, published by Headquarters, 36th Infantry Division awarded the applicant the Silver Star for gallantry in action on 5 January 1945.  The applicant was commended for his gallant actions, specifically for saving the lives of four Soldiers whom he shielded with his body from enemy artillery fire.  The citation states, "During an enemy artillery barrage, a shell exploded near the entrance to a dugout and wounded four men who had sought shelter inside.  Panic-stricken, the wounded men attempted to crawl out into the open.  The applicant threw himself across the 

entrance and, remaining in this exposed position for 10 minutes, while 50 to 75 shells burst in the company area, prevented the men from leaving the dugout and shielded them from the shell explosions.  His pack was torn and his back seared by the shell fragments."

11.  The applicant provided a copy of the telegram sent to his mother by the division commanding general, which informed the applicant's mother that he was awarded the Silver Star for his gallant actions during intense enemy artillery fire.

12.  The applicant also provided a copy of an undated newspaper article, which states in effect, that the applicant was awarded the Silver Star for his heroic and gallant actions during combat operations.  The author of the article writes, "One shell burst in a dugout showering the huddled men inside with shrapnel and injuring several.  Stunned, the injured attempted to make a break.  Unwounded the applicant, realizing that the relative safety prevailed in the dugout, forced them back and pinned them there by blocking the entrance.  Days later the applicant was still picking shrapnel from the blankets in the pack which he had been wearing."

13.  The applicant's records show that he is entitled to an additional award, which he did not request and is not listed on his WD AGO Form 53-55.

14.  Army Regulation 600-45 (Decorations), then in effect, which governed the award of Army decorations until 23 August 1951, stated that for the purpose of considering an award of the Purple Heart, a "wound" is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.  

15.  Army Regulation 600-8-22 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 by military medical personnel, and the medical treatment must have been made a matter of official record.

16.  Army Regulation 600-8-22 (Military Awards) 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.  This means, in effect, that the Bronze Star Medal is to be awarded to individuals who were authorized either badge for service during World War II.  This provision did not go into effect until 10 September 1947.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he received shrapnel wounds from enemy artillery shell explosions that seared his back during combat operations on or about 5 January 1945.  He was awarded the Silver Star for his gallant actions, saving the lives of four injured men when he shielded them from exploding enemy artillery shells by blocking the entrance of a dugout with his body.  An undated newspaper article that he submitted to support award of the Purple Heart, states in effect, the applicant was not wounded on this specific date and that he continued to pick artillery shell fragments out of his blankets days after the enemy shelling.  

2.  The applicant's WD AGO 53-55 does not show any entry for wounds received while engaged with the enemy.  There are no medical records, which show the applicant sought medical treatment for wounds or injuries to his back, which the Silver Star award citation states was "seared."  There is no creditable evidence to show that the applicant was in fact wounded when he acted heroically using his back, which was protected by his pack, and sleeping blanket to shield the injured men from enemy artillery fire.  Therefore, there is insufficient evidence upon which to base award of the Purple Heart in this case.

3.  The applicant is entitled to award of the Bronze Star Medal based on award of the Combat Infantryman Badge.

4.  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

__AMC__  __DAC__  __REB   _  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 and recommends denial of so much of the application that pertains to the award of the Purple Heart.

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 Bronze Star Medal.

3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.




___Ann M. Campbell          _
          CHAIRPERSON




INDEX

CASE ID
AR20070009574
SUFFIX

RECON

DATE BOARDED
20080103
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.