IN THE CASE OF:	
  
		BOARD DATE:	  23 September 2008

		DOCKET NUMBER:  AR20080004877 


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 correction of the discrepancy between the WD AGO Form 53-55 (Enlisted Record and Report of Separation, Honorable Discharge), of her deceased husband, a former service member (FSM), which shows he was awarded the Silver Star, and the National Records Personnel Center (NRPC) which authorized shipment of the Bronze Star Medal.

2.  The applicant states that she was denied payment of the Dependency and Indemnity Compensation (DIC) by the Department of Veterans Affairs (DVA)

3.  The applicant provides a copy of the FSM’s WD AGO Form 53-55, dated 11 April 1946; the FSM’s Certificate of death, dated 7 April 2007; and the NPRC letter, dated 1 October 2007, in support of her 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 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 FSM’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 FSM’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 FSM's WD AGO Form 53-55 shows he was inducted in the Enlisted Reserve Corps (ERC) and entered active duty on 30 March 1943 in San Francisco, California.  He was trained in military occupational specialty (MOS) 504 (Ammunition Bearer).  This form also shows that, at the time of his separation, the FSM was assigned to Headquarters, 119th Infantry.

4.  The FSM's WD AGO Form 53-55 shows he served in the European-African-Middle Eastern (EAME) Theater of Operations during the period from 27 May 1944 through 1 July 1945.

5.  The FSM’s WD AGO Form 53-55 shows he completed 1 year, 10 months, and 16 days of continental service; and 1 year, 2 months, and 3 days of foreign service.  He was honorably separated on 11 April 1946.

6.  Item 31 (Military Qualification and Date) of the FSM’s WD AGO Form 53-55 shows he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar and the Combat Infantryman Badge. 

7.  Item 32 (Battles and Campaigns), of the FSM’s WD AGO Form 53-55, shows he participated in the Rhineland, Northern France, and Central Europe campaigns during World War II.

8  Item 33 (Decorations and Citations), of the applicant's WD AGO Form 53-55, shows the applicant was awarded the Silver Star, the Purple Heart, the World War II Victory Medal, the American Theater Ribbon, the Good Conduct Medal, and the European-African-Middle Eastern Campaign Medal with three bronze service stars.  Item 33 does not list award of the Bronze Star Medal. 

9.  The NPRC letter, dated 1 October 2007, shows that, based on documents provided and/or official documents, the FSM was authorized shipment of the 
Bronze Star Medal, the World War II Victory Medal, the Combat Infantryman Badge, and the Lapel Button.  The NRPC letter is silent concerning shipment of the Silver Star.

10.  The FSM's records show that he is entitled to additional awards that are not listed on his WD AGO Form 53-55.

11.  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.

12.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) shows that the 119th Infantry received occupation credit in Germany for the period 2 May 1945 through 5 July 1945.

13.  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, escort, 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 evidence of record shows that the applicant was awarded the Combat Infantryman Badge.  Therefore, he is entitled to award of the Bronze Star Medal based on award of this Combat Infantryman Badge and correction of his WD AGO Form 53-55 to show the Bronze Star Medal.

2.  The evidence of records also shows that the applicant served with a unit in the EAME Theater of Operation that received occupation credit in Germany for the period 2 May 1945 through 5 July 1945.  Therefore, he is entitled to award of the Army of Occupation Medal, with Germany Clasp, and correction of his records to show this award.
3.  With respect to the discrepancy between the NPRC letter and the FSM's WD AGO Form 53-55, the latter is an official War Department [now Department of Defense] document and is the official record of the FSM's service during World War II.  Absent evidence to the contrary, the entry in Item 33 of the WD AGO Form 53-55 establishes the FSM's entitlement to the Silver Star.  It is possible the NPRC letter was merely focused on the fact that the FSM was awarded a Combat Infantryman Badge, but not a Bronze Star Medal.  In any event, the FSM's record should be corrected to show all of the awards to which he was entitled, including: the Silver Star, the Bronze Star Medal, the Purple Heart, the Good Conduct Medal, the American Campaign Medal [called the American Theater Ribbon on the FSM's WD AGO Form 53-55], the European-African-Middle Eastern Campaign Medal with 3 bronze service stars [called the European-African-Middle Eastern Theater Ribbon with 3 bronze campaign stars on the FSM's WD AGO Form 53-55], the World War II Victory Medal, the Army of Occupation Medal with Germany Clasp, the Combat Infantryman Badge, and the Marksman Marksmanship Qualification Badge with Rifle Bar [called the Marksman on the FSM's WD AGO Form 53-55].

4.  With respect to correction of the NRPC letter, dated 1 October 2007, the applicant is advised that the ABCMR has no authority to correct this letter since this is not a record under the control of the Secretary of the Army.  Any corrections should be referred to that Agency.  The applicant may use this ABCMR Record of Proceedings as proof of entitlement to awards.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ____X___  ___X___  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 adding the Bronze Star Medal and the Army of Occupation Medal with Germany Clasp to the FSM's WD AGO Form 53-55 and the medals already shown thereon.


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 correction of the awards listed on the NRPC letter, dated 1 October 2007.



      __________X____________
               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)                                         AR20080004877



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ABCMR Record of Proceedings (cont)                                         AR20080004877



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