RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 December 2007
	DOCKET NUMBER:  AR20070009998 


	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. Eloise C. Prendergast

Member

Mr. James R. Hastie

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 for injuries sustained in combat during World War II (WWII), near the city of Augsburg, Germany.

2.  The applicant states that he sustained an injury to his right hand and shrapnel to his left thumb and hand during combat. 

3.  The applicant provided a copy of a letter, dated 27 January 2003, from his brother in-law and a copy of a letter, dated 18 June 1945, that he mailed to his family during WWII, in support of his application. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

The applicant indicated on the DD Form 149 that the Veterans of Foreign wars of the United States (VFW) would act as counsel.  The VFW announced that, effective 1 September 2005, it can no longer participate as a representative in VFW matters pertaining to correction of military records.  As a result, this case is being considered by the Army Board for Correction of Military Records without referral to the VFW for review and comment. 

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 complete military records are not available 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, the remaining documents and the documents the applicant submitted there were sufficient to conduct a fair and impartial review of this case.
3.  The applicant's WD AGO Form 53-55 (Enlisted Record and Report of Separation) shows he was inducted in the Army of the United States on 14 June 1943 and he entered active duty on 28 June 1943 in military occupational specialty (MOS) 345 (Light Truck Driver).  This document also shows that he was assigned to Company I, 66th Infantry Regiment, 71st Division.

4.  The applicant's WD AGO Form 53-55 also shows he served in the European-African-Middle Eastern (EAME) Theater during the period 7 February 1945 through 1 March 1946 and that he completed 1 year, 7 months, and 3 days of continental service and 1 year, 1 month, and 14 days of foreign service.  He was honorably separated on 14 March 1946.

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

6.  Item 33 (Decorations and Citations) of the applicant's WD AGO Form 53-55 shows he was awarded the Bronze Star Medal, the Good Conduct Medal, the American Theater Service Medal, and the European-African-Middle Eastern Campaign Medal.  Item 33 does not show award of the Purple Heart.

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

8.  The applicant's records do not contain General Orders awarding him the Purple Heart.  Additionally, the available record does not show the applicant was injured, when or where he was injured or whether the injury was a result of hostile action and/or whether he was treated by military medical personnel.  

9.  The applicant submitted a letter, dated 27 January 2003, that was drafted by the applicant’s brother in law.  The brother in law states in his letter that the applicant notified his sister in or about September 1945 that the applicant fell victim to a trap that was set by an enemy ambush, causing the applicant to crash his jeep, and severely injure his right hand.

10.  The applicant also submitted a personal letter, dated 18 June 1945, addressed to his family.  He described his experience in Germany including a 230-mile trip into the country side. 

11.  The Purple Heart was established by General George Washington at Newburgh, New York on 7 August 1782 during the Revolutionary War.  It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action.

12.  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.

13.  The applicant's records show that he is entitled to additional awards that are not listed on his WD AGO Form 53-55.

14.  Army Regulation 600-8-22 (military Awards) provides, in pertinent part, for award of the World War II Victory Medal.  The World War II Victory Medal was established by the act of Congress on 6 July 1945.  It was awarded for service between 7 December 1941 and 31 December 1946, both dates inclusive.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to award of the Purple Heart.

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.  The applicant's records show that he served during the period 28 June 1943 through 14 March 1946.  Therefore, he is entitled award of the World War II Victory Medal and correction of his military records to show this award.

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

__lds___  __ecp___  __jrh___  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 to award 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 World War II Victory Medal. 



							Linda D. Simmons
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070009998
SUFFIX

RECON

DATE BOARDED
20071204
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
107.0000
2.

3.

4.

5.

6.