IN THE CASE OF:	  

	BOARD DATE:	  29 May 2008

	DOCKET NUMBER:  AR20080004820 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, award of the Purple Heart.

2.  The applicant defers his statement to his counsel.

3.  The applicant submitted his documentary evidence through his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be awarded the Purple Heart.

2.  Counsel states that the applicant was assigned to the 23rd Armored Engineer Battalion, 3rd Armored Division during his service in World War II (WW II), and that:

	a.  the applicant was wounded on three occasions during his service in WW II, but did not stop to be treated given the very serious casualties around him at the time.  He was wounded in his knee at Omaha Beach, wounded a second time by shelling during the Battle of the Bulge, and sustained a third wound in his face and eyes while clearing mines after the main encounter of the Battle of the Bulge; and

	b.  the applicant's mine-clearing wound was caused when the applicant was in demining operations when the detonator of an enemy-mine he was disarming exploded in his face.  He lost sight at the time and some of his hearing 
and had fragments in his face, nose, and eye.  He was evacuated to France for treatment.  The treating physician did not list the wound as a Purple Heart wound; but it should have been evaluated as such. 

3.  Counsel provides the following additional documentary evidence in support of the applicant's request:

	a.  WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge), dated 24 November 1945.

	b.  A statement by the applicant's spouse, dated 17 September 2007

	c.  A statement by the applicant's son, dated 17 September 2007.

	d.  An electronic mail (email) statement by the applicant's second son, dated 17 September 2007.

	e.  A statement by the applicant's third son, dated 18 September 2007.

	f.  A statement by the applicant's grandson, dated 17 September 2007.

	g.  A statement by the applicant's daughter, dated 17 September 2007.

	h.  Undated, hand-written notes, by an unknown author.

	i.  Extract of an unknown book, describing the Ardennes campaign during the Battle of the Bulge.

	j.  Extract of a magazine, describing the story of the applicant as a WW II veteran.

	k.  A statement, dated 27 September 2007, by a son of the applicant's comrade in arms who served with him during WW II.

	l.  A letter, dated 29 April 2004, from the applicant to the President of the United States.

	m.  A letter, dated 2 June 2004, from the Special Assistant to the President, directing the applicant to submit his request to the National Personnel Records Center (NPRC).

	n.  Veterans Administration (VA) [now known as the Department of Veterans Affairs] letters to the applicant, dated 27 July 1948 and 14 March 1963.
	o.  Letter, dated 10 October 2001, from the U.S. Total Army Personnel Command (now known as Human Resources Command-HRC), Alexandria, Virginia, concerning insufficient evidence to award the Purple Heart.

	p.  Four letters, dated on miscellaneous dates in 2005, from the applicant's daughter to the VA and NRPC, requesting her father's military records.

	q.  A letter, dated 4 July 2004, from the applicant's friend (a retired Army colonel) to the Sergeant Major of the Army, requesting assistance in awarding the applicant the Purple Heart.

	r.  A letter, dated 5 August 2004, from NPRC with enclosures of morning reports on miscellaneous dates in 1944 and 1945.

	s.  Extract of hospital admissions card created by the Office of the Surgeon General.

	t.  The applicant's Certificate of Birth and Certificate of Naturalization.

	u.  Maps of Europe, outlining the major operations of the 23rd Engineer Battalion during WW II.

	v.  The applicant's and his friend's speeches, dated 17 July 2002, during the 3rd Armored Division Veterans Reunion in Louisville Kentucky.

	w.  Miscellaneous photographs of Soldiers and veterans.

	x.  Order to Report for Induction, dated 13 February 1943, and Certificate of Induction, dated 22 February 1943.

	y.  WD AGO Form 100 (Separation Qualification Record) and Honorable Discharge Certificate, dated 24 November 1945.

	z.  Applicant's Certificate of Appreciation, dated 29 May 2004.

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 were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant's WD AGO Form 53-55 shows he was inducted into the Army of the United States on 22 February 1943 and entered active duty on 1 March 1943. He was trained in military occupational specialty (MOS) 533 (Demolition Specialist).

4.  The applicant's WD AGO Form 53-55 also shows that at the time of his discharge, he was assigned to Battery A, 93rd Armored Field Artillery (AFA) Battalion, Fort Dix, New Jersey.  However, the applicant's name appears on the Company Morning Reports, dated 11 July 1944, 3 November 1944, 24 February 1945, and 14 March 1945, of Company A, 23rd Armored Engineer Battalion.

5.  The applicant's WD AGO Form 53-55 shows he served in the European-African-Middle Eastern (EAME) Theater during the period 5 September 1943 through 19 November 1945.

6.  The applicant's WD AGO Form 53-55 shows he completed 6 months and
9 days of continental service and 2 years, 2 months, and 15 days of foreign service.  He was honorably separated on 24 November 1945.

7.  Item 31 (Battles and Campaigns) of the applicant’s WD AGO Form 53-55 shows he participated in the Rhineland, Ardennes, Central Europe, Normandy, and Northern France campaigns during WW II.

8.  Item 33 (Decorations and Citations) of the applicant's WD AGO Form 53-55 shows the applicant was awarded the Good Conduct Medal, the World War II Victory Medal, and the European-African-Middle Eastern Campaign Medal.  Item 33 does not show award of the Purple Heart.

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

10.  The applicant's reconstructed records do not contain General Orders awarding him the Purple Heart. 

11.  The applicant's Hospital Admissions Cards created by the Office of the Surgeon General (OTSG) show that the applicant was hospitalized or treated during his service in WW II for chronic tonsillitis, chronic prostatitis, urethritis, and eye (cornea) trauma.  This OTSG hospitalization records indicate that the applicant's ailments were "all non-battle injuries."

12.  The applicant, through counsel, submitted several statements, emails, extracts, photographs, letters, maps, and other related documents, authored by family members, friends, and others as follows:

	a.  In their statements dated on miscellaneous dates, the applicant's former wife, sons, daughter, and grandson remember the applicant telling them about his experience in WW II, to include his wounds during vicious and intense battles that later led to certain disabilities in his knee that prevented him from taking part in some of the family activities, as well as visible scars in his face.

	b.  An extract of an unknown history book describes the Ardennes campaign during the Battle of the Bulge.  This was Germany's last desperate attempt at an offensive attack.  The Allied Forces lined up along a 600-mile front, starting at the North Sea to Switzerland.  On 16 December 1944, the Germans launched a surprise offense attack on the Allied Forces in Ardennes, a hilly and wooded region in Belgium.  This pushed back the Allied Forces creating the beginning of a bulge in their front line position, hence the name, the Battle of the Bulge.  The enemy believed that their ground forces were superior to the allies’ ground forces; felt the allies would panic in a defensive position; and weather would be on their side in this attack.  The enemy was right about all except one, the ground forces.  This was the first time that allied ground troops were tested, because foggy skies prevented any air attack, but they matched up, and in many ways were superior to the enemy ground troops.  A well-known example of this is when the Germans tried to overtake Bastogne, which was defended by the Army’s 101st Airborne Division, when an enemy commander asked for their surrender.  The 101st commander, General Anthony McAuliffe simply replied "Nuts!," so the enemy chose to bypass Bastogne.  However, this did stop the enemy advance from pushing back allied forces, creating a bigger bulge in the front line.  Enemy soldiers were moving, but had to slow down due to lack of 
supplies and allied resistance.  On 25 December 1944, the enemy reached their farthest point near the Meuse River; but on 3 January 1945, the allies went on the offensive until victory was theirs.

	c.  In an extract from a magazine, published in October 2004, the article describes the applicant's experience during WW II.  He talks about the Normandy Invasion when "….all hell was breaking loose, because they did not establish much of a beach-head."  The article mentions that the applicant took some shrapnel in the leg and the applicant states "It wasn't bad; I patched myself up; I did not need a medic or anything."

	d.  The VA letter, dated 14 March 1963, certifies that after reviewing the applicant's medical records, he was determined to have service-connected disability or disabilities.

	e.  In a letter, dated 10 October 2001, the Chief, Military Awards Branch, HRC-Alexandria, Virginia, notified the applicant that after reviewing the historical records for the WW II era for the 3rd Armored Division, the record was void of any orders awarding the applicant the Purple Heart and that there were no documents available for the 23rd Engineer Battalion.  The Chief further reiterated the criteria for award of the Purple Heart as prescribed in Army Regulations and recommended the applicant contact the NPRC to obtain further documentary evidence.

	f.  The morning reports, dated on miscellaneous dates, show that the applicant was assigned to Company A, 23rd Armored Engineer Battalion, during his service in WW II; 

13.  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.

14.  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 medical personnel, and the medical treatment must have been made a matter of official records.

15.  Review of the applicant's records indicates his entitlement to additional awards that are not shown on his WD AGO Form 53-55.

16.  Item 32 (Battles and Campaigns) of the applicant's WD AGO Form 53-55 shows he participated in five campaigns during his service in WW II.

17.  Army Regulation 600-8-22 provides, in pertinent part, for award of the European-African-Middle Eastern Campaign Medal.  This regulation also authorizes a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation or listed in item 32 of the WD AGO Form 53-55.  This regulation further states that a silver service star will be worn in lieu of five bronze service stars. This regulation further states that authorized bronze or silver service stars will be worn on the appropriate campaign or service medal including the European-African-Middle Eastern Campaign Medal.

18.  Army Regulation 600-8-22 provides, in pertinent part, that the Army of Occupation Medal is awarded for service of thirty 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.

19.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) dated 6 July 1961, shows World War II units that are authorized occupation credit and therefore, entitlement to the Army of Occupation Medal.

DISCUSSION AND CONCLUSIONS:

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

2.  The applicant’s letters, statements, emails, extracts, photographs, and other related documents, authored by family members, friends, and others, were noted.  However, chronicles of events, which were prepared more than 60 years after the fact, do not by themselves conclusively prove the applicant was wounded or injured as a result of hostile action.  

3.  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.  Regrettably, absent evidence which conclusively shows that the applicant sustained wounds or injuries as a result of hostile action, and that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is insufficient basis for awarding the Purple Heart to the applicant in this case.

4.  The evidence of record shows that the applicant participated in five campaigns in the European-African-Middle Eastern Theater during World War II. Therefore, he is entitled to correction of his military records to show one silver service star to be affixed to his already-awarded European-African-Middle Eastern Campaign Medal.

5.  Although the applicant's WD AGO Form 53-55 shows he was assigned to Battery A, 93rd Armored Field Artillery (AFA) Battalion, the morning reports clearly show he was assigned to the 23rd Armored Engineer Battalion during his service in WW II.  Furthermore, the evidence of record shows that the 23rd Armored Engineer Battalion received occupation credit in Germany for the period 2 May 1945 through 31 October 1945.  Therefore, the applicant is entitled to award of the Army of Occupation Medal with Germany Clasp, and correction of his records to show this award.

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

__xxx___  __xxx___  __xxx___  DENY APPLICATION






BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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 concerning 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 records of the individual concerned to show award of the Army of Occupation Medal with Germany Clasp, and a silver service star to be affixed to his already-awarded European-African-Middle Eastern Campaign Medal.

3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.


								XXX
      _______________________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080004820



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ABCMR Record of Proceedings (cont)                                         AR20080004820



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