RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 April 2008
	DOCKET NUMBER:  AR20080001190 


	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.




Director



Analyst
      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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, in effect, that his WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge) be corrected to show that he departed the European Theater of Operations (ETO) on 26 June 1945. 

2.  The applicant essentially states that the current entry on his WD AGO Form 53-55, which shows that he departed the ETO on 26 January 1945 is incorrect, and that he served in the ETO from 7 September 1944 through 26 June 1945.  He also states, in effect, that he discovered the mistake when he was denied award of the Army of Occupation Medal with Germany Clasp in a previous application to the Army Board for Correction of Military Records (ABCMR).

3.  The applicant provides his WD AGO Form 53-55, a DD Form 215 (Correction to DD Form 214 [Certificate of Release or Discharge from Active Duty]), Honorable Discharge Certificate, WD AGO Form 100 (Separation Qualification Record), orders awarding him the Bronze Star Medal and the Purple Heart, a citation for the Silver Star, and historical information from the 104th "Timberwolf" Division in support of this application. 

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 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 majority of the applicant’s 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 majority of the applicant's records were lost or destroyed in that fire.  However, there are sufficient remaining documents available to conduct a fair and impartial review of this case.  



3.  Item 36 (Service Outside Continental U.S. and Return) of the applicant’s 
WD AGO Form 53-55 essentially shows that he departed the continental United States on 27 August 1944 for the ETO, and that he arrived in the ETO on 
7 September 1944.  It also shows that he departed the ETO on 26 January 1945, and returned to the continental United States on 3 July 1945.  However, transit time between the ETO and the continental United States during and immediately after World War II was normally 8 to 12 days, and the applicant's WD AGO Form 53-55 essentially shows that he spent 5 months and 8 days in transit from the ETO to the continental United States, implying that the date of the applicant's departure from the ETO was a typographical error, and that he actually departed the ETO on 26 June 1945.  Additionally, the applicant provided orders which awarded the Purple Heart for being wounded in action on 23 February 1945 in the ETO, which confirms that the applicant did not depart the European Theater of Operations on 23 January 1945.  Additionally, the applicant provided orders awarding him the Bronze Star Medal for meritorious achievement during the period 7 September 1944 to 26 June 1945 and a citation for the Silver Star for gallantry in action on 24 March 1945, both of which confirm that the applicant did not depart the ETO on 26 January 1945.  The applicant also provided historical information on the 104th Division which essentially shows that his division embarked the ETO for the United States on two ships, one of which embarked on 26 June 1945.

4.  It was noted that the applicant's previous request to the ABCMR for award of the Army of Occupation Medal with Germany Claps was denied due to the inaccurate date of departure from the ETO shown on his WD AGO Form 53-55.  As the date of departure from the ETO s being addressed at this time, his request for award of the Army of Occupation Medal with Germany Clasp will be revisited.

5.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) identifies, in pertinent part, occupation credit for units during World War II.  This document shows that the applicant's unit during World War II, the 413th Infantry Regiment, was awarded occupation credit in Germany from 2 May 1945 to 5 June 1945.

6.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Army of Occupation Medal is awarded for service of 30 consecutive days at a normal post of duty in a qualifying location.  Personnel at a qualifying location as an inspector, courier, and escort on temporary or detached duty are precluded from eligibility.  For award of the Army of Occupation Medal with Germany Clasp, 
qualifying service must have occurred between 9 May 1945 and 5 May 1955, and the European-African-Middle Eastern Campaign Medal must have been awarded prior to 9 May 1945.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his WD AGO Form 53-55 should be corrected to show that he departed the ETO on 26 June 1945. 

2.  It is clear that the entry on the applicant's WD AGO Form 53-55 showing that he departed the ETO on 26 January 1945 is a typographical error, and that it should have shown that he departed the ETO on 26 June 1945.  Therefore, it would be appropriate at this time to correct item 36 of his WD AGO Form 53-55 to show that he departed the ETO on 26 June 1945.

3.  The applicant was assigned to the 413th Infantry Regiment for more than 
30 days while this unit was awarded occupation credit in Germany from 2 May 1945 to 5 June 1945.  Therefore, he is entitled to award of the Army of Occupation Medal with Germany Clasp, and correction of his military records to show the award of the Army of Occupation Medal with Germany Clasp.  

BOARD VOTE:

__XXX __  __XXX__  __XXX__   GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing in item 36 of his WD AGO Form 53-55 that he departed the ETO on 26 June 1945 instead of 26 January 1945 that is currently shown; and


	b.  awarding him the Army of Occupation Medal with Germany Clasp.

2.  The Board wants the applicant and all others to know that the sacrifices made by him in service to the United States during World War II are deeply appreciated. The applicant and all Americans should be justifiably proud of his service in arms.




      ___        XXX                ___
                CHAIRPERSON
      
      
      
ABCMR Record of Proceedings (cont)                                         AR20080001190



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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