RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 January 2008
	DOCKET NUMBER:  AR20070011062 


	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:


Mr. Curtis L. Greenway

Chairperson

Mr. Joe R. Schroeder

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 award of the Purple Heart.

2.  The applicant states, in effect, that he was wounded in action and that he did not receive the Purple Heart Medal.  He also states the date he was wounded on his WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) is incorrect. 

3.  The applicant provides three supporting documents with his application:

      a.  a copy of his WD AGO Form 53-55 with a release from active duty date of 26 November 1945;

      b.  a copy of CSC Form 258 (United States Civil Service Commission) dated 29 March 1951, which shows he was granted a 10 point Veterans preference for a service related disability; and

      c.  WD AGO Form 100 (Army of the United States Separation Qualification Record) which shows he served on active duty as a field wire chief. 

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) with a separation date of 26 November 1945.  

3.  The available record shows the applicant entered active service on 26 March 1942.  The applicant arrived in the Asiatic-Pacific Theater of Operations on 25 March 1944.  He participated in the Eastern Mandates Campaign (31 January 1944 to 14 June 1944), the Ryukyus Campaign (26 March 1945 to 2 July 1945) and the Southern Philippines Campaign (27 February 1945 to 4 July 1945).

4.  A record of the units to which the applicant was assigned and the dates of his assignment was not available for the Board to review.  Item 8 (Organization) of the applicant's WD AGO Form 53-55 show his unit of assignment upon his release from active duty was Headquarters, 2nd Battalion, 306th Infantry.

5.  On 26 November 1945, 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, Expert Infantryman Badge, and the Expert Marksmanship Qualification Badge with Carbine Bar and the Sharpshooter 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.  It does contain the entry Bronze Star Medal (BSM) with one bronze star, in effect, the BSM with Oak Leaf Cluster.

8.  Item 34 (Wounds Received in Action) of the applicant's WD AGO Form 53-55 contains the entry "9 October 1945."

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

10.  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.  

11.  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.  This regulation also provides that there is no statute of limitations on requests for award of the Purple Heart.

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the BSM is awarded for heroism and for meritorious achievement or service in military operations against an armed enemy.  The BSM 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 BSM 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.

13.  Army Regulation 600-8-22 (Military Awards) states, in pertinent part, that the first oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the BSM.

14.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Philippine Republic Presidential Unit Citation was awarded to certain units of the Armed Forces of the United States in recognition of participation in the war against the Japanese Empire during the periods 7 December 1941 and 10 May 1942, inclusive, and 17 October 1944 to 4 July 1945, inclusive.  Not more than one Philippine Republic Presidential Unit Citation will be worn by an individual and no oak leaf cluster or other appurtenance is authorized.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) indicates that the 306th Infantry Regiment was awarded the Philippine Presidential Unit Citation by Department of the Army General Order Number 47, dated 1950.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to the Purple Heart Medal and that the date he was wounded on his separation document is incorrect.





2.  Based on the entry in Item 34 of the applicant's WD AGO 53-55, which shows he was wounded on 9 October 1945 in the Asiatic-Pacific Theater, there is sufficient evidence upon which to base award of the Purple Heart.  Therefore, the applicant is entitled to have his record corrected to show award of the Purple Heart Medal.

3.  There are no personnel or medical records available due to the fire at the National Personnel Records Center in 1973 nor has the applicant provided evidence to show that he was wounded on a date other than what is recorded on his WD AGO 53-55.  In the absence of evidence, there is no basis to grant the request and change the date he was wounded in the Asiatic-Pacific Theater. 

4.  The applicant was discharged prior to the provision that authorized award of the BSM based on award of the Combat Infantryman Badge.  Therefore, he is entitled to award of the BSM based on award of the Combat Infantryman Badge. This is the third award of the BSM; therefore, he is entitled to award of the BSM Second Oak Leaf Cluster.

5.  Based on the applicant's service with 2nd Battalion, 306th Infantry Regiment he is authorized the Philippine Republic Presidential Unit Citation.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__QAS__  __CLG___  __JRS__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding the Purple Heart for Wounds Received in Action on 9 October 1945, the Bronze Star Medal with Second Oak Leaf Cluster, and the Philippine Republic Presidential Unit Citation. 



2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 
denial of so much of the application that pertains to correcting the date the applicant was wounded in action on his WD AGO 53-55. 



___Curtis L. Greenway__
          CHAIRPERSON


INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080115
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT (partial)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.