RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 January 2008
	DOCKET NUMBER:  AR20070012477 


	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. David K. Haasenritter

Chairperson

Mr. James R. Hastie

Member

Mr. Edward E. Montgomery

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 for wounds he received during World War II.

2.  The applicant states, in effect, he was injured during combat operations from an enemy air attack while in Tunisia with the Company E, 1st Battalion, 1st Infantry Division. 

3.  The applicant provides a copy of his WD AGO form 53-55 (Enlisted Record and Report of Separation and Honorable Discharge) with a separation date of 7 July 1945 and his Separation Qualification Record. 

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.  

3.  The available record shows the applicant was inducted on 25 November 1941.  The applicant arrived in the European-African-Middle-Eastern Theater of Operations on 7 August 1942.  He participated in four campaigns:  the Algeria-French Morocco Campaign (8 November 1942 to 11 November 1942); the Tunisian Campaign (17 November 1942 to 13 May 1943); the Naples-Foggia Campaign (9 September 1943 to 21 January 1944); and, the Rome-Arno Campaign (22 January 1944 to 9 September 1944).  He departed this theater of operation on 15 January 1945.
4.  A record of the units to which the applicant was assigned and the dates of his assignments were not available for the Board to review.

5.  On 7 July 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.

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.  Item 33 (Decorations and Awards) shows he was awarded the Distinguished Unit Badge, Good Conduct Ribbon, American Defense Service Ribbon, European-African-Middle Eastern Theater Ribbon with four bronze stars, and five overseas service bars.

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

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 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.

13.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the World War II Victory Medal.  It is awarded for service between 7 December 1941 and 31 December 1946, both dates inclusive.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he received injuries from an enemy air attack during combat operations in Tunisia and that he is entitled to award of the Purple Heart. 

2.  The applicant's WD AGO 53-55 does not show any entry for wounds received while engaged with the enemy.  The applicant was not discharged with a disability; rather he was discharged due to demobilization of the Army.  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.  The applicant served during the period 5 December 1942 to his date of separation on 7 July 1945.  Therefore, the applicant is entitled to award of the World War II Victory Medal.

5.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement

6.  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

__JRH__  __DKH__  __EEM___  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 WD AGO form 53-55, with a separation date of 7 July 1945, to show award of the Bronze Star Medal and the World War II Victory Medal.






___David K. Haasenritter___
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080125
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY w/note
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.