RECORD OF PROCEEDINGS


	IN THE CASE OF:	   


	BOARD DATE:	  1 April 2008
	DOCKET NUMBER:  AR20070012397 


	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 L. Engle

Analyst

The following members, a quorum, were present:


Mr. Lester Echols

Chairperson

Mr. Joe R. Schroeder

Member

Mr. Larry W. Racster

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 Military Record and Report of Separation Certificate of Service (WD AGO Form 53-98) to show award of the Purple Heart for an injury received during World War Two.  He further requests that his Bronze Star Medal for heroism be upgraded to the Distinguished Service Cross or the Silver Star.

2.  The applicant states, in effect, that he has been trying for many years to receive the Purple Heart and Distinguished Service Cross or Silver Star.

3.  The applicant provides copies of his Recommendations for Award of the Distinguished Service Cross/Silver Star and for the Purple Heart including numerous enclosures as indicated in the attached index listing that supported these recommendations.

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.  On 26 October 1943, the applicant entered active duty as a Reserve Corps officer, Infantry.  He attained the rank of first lieutenant and was separated from active duty on 28 August 1946.  He had completed 2 years, 10 months, and 
3 days of creditable active duty during this period of service. 

3.  An Admission and Disposition Roster, dated 11 January 1945, lists the applicant, then a second lieutenant, infantry, assigned to Company B, 311th Infantry Regiment, as transferred to the 108th Evacuation [Hospital] with a hernia inguinal right [right side area of the groin] recurrent [returning at intervals].  The roster identifies causes for required medical attention as W [wounded], BI [battle injury], or Disease.  The applicant's entry shows the cause for his medical care as disease.  
4.  General Orders Number 11, 311th Infantry Regiment, dated 11 January 1945, awarded the applicant the Combat Infantryman Badge for exemplary conduct in action against the enemy, effective 10 January 1944.

5.  The After Action Report (AAR) for the 311th Infantry Regiment for the month of January 1945 describes the heavy combat action that occurred during the period from 5 to 7 January 1945.  This report discusses the attack at 10:30 a.m. on 5 January by Company B on two enemy pill boxes.  At 8:25 a.m. on 
6 January, Company B was relieved by Company A.  There is no further mention of Company B in this AAR.  

6.  General Orders Number 491, 78th Infantry Division, dated 25 September 1945, awarded the applicant the Bronze Star Medal for heroic achievement in connection with military operations against the enemy on 3-5 January 1945 in the vicinity of Bickerath, Germany.  The applicant, leader of a weapons platoon, accompanied assaulting elements of his company in an attack on a well-defended pillbox and troop shelter in the Siegfried Line defenses.  Deep snow, open terrain and intense cold complicated the advance.  However, under severe enemy fire, the applicant accurately directed mortar fire on the enemy positions and, on the last day of the three-day action, remained on the right flank as the company withdrew, aiding in giving covering fire and in the evacuation of a wounded aid man.  His courage and military skill were in accordance with the highest military traditions.

7.  The applicant's Separation Qualification Record (WD AGO Form 100) states that he commanded a platoon within the 311th Infantry Regiment, 78th Infantry Division, during combat operations in the European Theater of Operations.  He was also assigned duty as the special service officer for the 78th Infantry Division and the Berlin District.  It further states that the applicant was awarded the Bronze Star Medal with a cluster for heroic action [two awards], the Combat Infantryman Badge for actual combat with the enemy, and the European Theater Ribbon with three stars for participation in the Ardennes, Rhineland, and Central Europe campaigns.

8.  Item 29 (Decorations and Citations) of the applicant's WD AGO Form 53-98 lists his awards as the Bronze Star Medal with Oak Leaf Cluster, European-African-Middle Eastern Campaign Medal, World War II Victory Medal, and the American Campaign Medal.  It does not show the Purple Heart or the Combat Infantryman Badge. 



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 by a medical officer, and the medical treatment must have been made a matter of official record.

10.  In a letter dated 28 February 2007, the Chief, Military Awards Branch, United States Army Human Resources Command, Alexandria, Virginia, stated that Department of Defense Policy and Army regulations allow for a one time reconsideration of a previously approved award.  It further started that in March and December 2002, the Army Decorations Board reconsidered a request to upgrade the applicant's Bronze Star Medal with "V" Device for Valor to the Silver Star.  That board determined that the degree of action and service rendered did not meet the strict criteria for the proposed award.  Based on this determination, the recommendation was disapproved.  With regard to award of the Purple Heart, the letter stated that the applicant's injuries sustained in combat were caused by his own exertion when attempting to move the bodies of his fallen comrades.  Hence, his injuries were not the direct result of enemy action and did not qualify for award of the Purple Heart.

11.  Army Regulation 600-45 (Decorations), in effect at the time, governed award of the Distinguished Service Cross.  Paragraph 12 stated that the Distinguished Service Cross was awarded to any person who, while serving in any capacity with the Army of the United States, who shall have distinguished himself or herself by extraordinary heroism in connection with military operations against an armed enemy.  Paragraph 12b stated the standards for this award as “The act or acts of heroism performed must have been so notable and have involved the risk of life so extraordinary as to set the individual apart from his or her comrades.”

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.





13.  On 14 December 2004, a comrade of the applicant made a sworn statement to the effect that the applicant's inspiring actions on 5 January 1945 set an example for the other men.

14.  Review of the applicant's available records indicates entitlement to additional awards and decorations that are not shown on his separation documents.

15.  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.  Therefore, the Bronze Star Medal is to be awarded to individuals who were authorized either badge for service during World War II.

16.  Army Regulation 600-8-22, paragraph 6-5 provides, in pertinent part, that the bronze “V” device indicates acts of heroism involving conflict with an armed enemy and authorizes the bronze “V” device in conjunction with awards of the Army Commendation Medal, the Air Medal and the Bronze Star Medal.  

17.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for the wear of a bronze service star on the European-African-Middle Eastern Service Medal for participation in each campaign.

18.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in World War II.  This publication shows that the 78th Infantry Division, during the time of the applicant's assignment, was cited for award of the Army of Occupation Medal with Germany Clasp. 

DISCUSSION AND CONCLUSIONS:

1.  The Army Decorations Board has considered on two occasions the recommendation to upgrade the applicant's Bronze Star Medal with "V" Device to the Silver Star.  On both occasions the board determined that the actions and service of the applicant did not meet the strict criteria for award of the Silver Star. 

2.  The applicant has not provided any new evidence or convincing argument to overcome the determination made by the Army Decorations Board.  Therefore, his request for upgrade of his Bronze Star Medal should be denied.
 
3.  The evidence of record clearly shows that the applicant suffered from a recurring hernia and was sent for medical attention.  However, there is no substantiating evidence showing that this injury was sustained as a direct result of enemy action.   His contention that he is entitled to award of the Purple Heart because he became injured while moving the bodies of his fallen comrades on the battle field is not sufficient.  There is no evidence showing that the enemy was directing fire at him while moving his fallen comrades.  Therefore, the applicant's request for award of the Purple Heart should be denied. 

4.  The available evidence shows that the applicant was awarded the Combat Infantryman Badge for his service in the European Theater of Operations during World War II.  Accordingly, he is also entitled to award of the Bronze Star Medal. Therefore he should be awarded an additional Oak Leaf Cluster to be affixed to his already-awarded Bronze Star Medal with Oak Leaf Cluster.

5.  The available evidence clearly shows that the applicant participated in three campaign periods.  Therefore, he is eligible for award of three bronze service stars to be affixed to his already-awarded European-African-Middle Eastern Service Medal.

6.  Records show that the applicant's unit was awarded the Army of Occupation Medal with Germany Clasp.  Therefore, his records should be corrected to show this award.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__JRS __  __LE  ___  _LWR  __  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:

a.  awarding him an additional Oak Leaf Cluster to be affixed to his already awarded Bronze Star Medal with Oak Leaf Cluster;

b.  adding a "V" Device to his already awarded Bronze Star Medal; and

c.  showing that, in addition to the awards shown on his WD AGO Form 53-55, his authorized awards include a second Oak Leaf Cluster and "V" Device to be affixed to his already-award Bronze Star Medal with Oak Leaf Cluster, Combat Infantryman Badge, three bronze service stars to be affixed to his already-awarded European-African-Middle Eastern Campaign Medal, and the Army Occupation Medal with Germany Clasp.

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 upgrade of his Bronze Star Medal or award of the Purple Heart.




____     Lester Echols ______________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.