IN THE CASE OF:	  

	BOARD DATE:	  24 July 2008

	DOCKET NUMBER:  AR20080005274 


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, that Item 3 (Grade) of his separation document (WD AGO Form 53-55) be corrected to show his rank as staff sergeant (SSG) and he requests award of the second Purple Heart (in effect, a Purple Heart with Oak Leaf Cluster).  He also requests his medals be re-issued, excluding the Purple Heart and four combat stars, and a determination be made if he is entitled to any other service awards.

2.  The applicant states that due to time circumstances and the fact he was processing out of the service, he was never promoted to SSG.

3.  He states, in effect, that he is an 84 year old World War II (WWII) veteran with 
18 grandchildren and 34 great-grandchildren.  He never said much about his time in the service with his family, but now he knows that was wrong.  He would like for them to be proud of him just as he was proud of his grandfather.  

4.  He continues by describing his service in the military.  He states that he was thrown off a tank when it made a sharp turn traveling at 25 miles an hour.  He was riding on top of the tank as infantry support and they heard mortar fire.  The tank he was riding on sped up and started zigzagging so the enemy could not get a beat on them.  He further states that just as he turned to warn his squad to lay low and hang on the tank he was riding on made a sharp turn and threw him off.  The injury was never reported on his discharge papers even though it was evident he was wounded in combat.  He had also made a claim before, but he was told the Purple Heart was already given to him. 

5.  The applicant provides a letter from his elected representative, dated  
21 March 2008.

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 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 to conduct a fair and impartial review of this case.

3.  Army Retirees/Veterans who terminated their service prior to 1 October  
2002, and desires a replacement for a previously approved award must submit their requests to the National Personnel Records Center (NPRC), Attention: Army Reference Branch, 9700 Page Avenue, St. Louis, Missouri St. Louis, MO 63132-5100.  Requests must provide as much information as possible.  Requests must also include a copy of the retiree’s/veteran’s separation or discharge paperwork and any other supporting documentation to substantiate their request.  

4.  In view of the above, the applicant’s request for replacement medals will not be further discussed in this Record of Proceedings.

5.  The applicant's reconstructed record shows he was inducted into the Army of the Unites States on 1 March 1943 and entered active duty on 8 March 1943.  He completed the necessary training and was awarded the military occupational specialty (MOS) 055 (Clerk General).

6.  The applicant's WD AGO Form 53-55 shows that he served in the European African-Middle-Eastern Theater during the period 30 Jun 1944 to 24 May 1945.  He was honorably separated from active duty on 5 November 1945.
7.  Item 3 of his WD AGO Form 53-55 shows the entry "Sgt."

8.  Item 31 (Military Qualification and Date) of his WD AGO Form 53-55 shows the entry "Combat Inf. Badge 16 Feb 45."

9.  Item 32 (Battles and Campaigns) of his WD AGO Form 53-55 shows the entry "Northern France GO 33 WD 24, Rhineland, Ardennes, and Central Europe GO 40 WD 45."

10.  Item 33 (Decorations and Citations) of his WD AGO Form 53-55 shows the entry World War II Victory Medal; "TWX WD 23 Oct 45"; American Campaign Medal; European-African-Middle Eastern Campaign Medal; Purple Heart 27 Dec 44; and the Good Conduct Medal.  However, it does not show the award of a Purple Heart with Oak Leaf Cluster.

11.  Item 34 (Wounds Received in Action) of his WD AGO Form 53-55 shows the entry "Luxemburg 27 Dec 44."

12.  Item 38 (Highest Grade Held) of his WD AGO Form 53-55 shows the entry "Sgt."

13.  There is no evidence in the applicant's reconstructed records that show he was recommended for or promoted to the rank of SSG.

14.  The applicant's reconstructed records contain a copy of his medical records. The medical record's Final Summary, states that, "At 1600 hours, 15 April 45, in Germany, patient was injured when he fell off a tank.  X-rays revealed no fractures of pelvis.  He sustained a contusion of his left hip, severe.  Patient was treated at Battalion Aid Station first, and then sent to an Evac Hosp from which he was flown to England.  While in U.S. Hosp in England he was given physiotherapy and then was evacuated to the States."

15.  Technical Manual 12-235, Discharge Procedures and Preparation of Separation Forms, in effect at the time, provides in paragraph 24, that item 3 of the WD AGO Form 53-55, Grade, be completed as follows:  “Enter grade held at time of separation and date of rank or appointment."

16.  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 medical personnel, 
and the medical treatment must have been made a matter of official record.  This 
regulation states that when contemplating award of the Purple Heart, the key issue that commanders must take into consideration is the degree in which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not the sole justification for award.  It further states that injuries or wounds which clearly do not justify award of the Purple Heart includes accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

17.  Army Regulation 600-8-22 states, in pertinent part, that an Oak Leaf Cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Purple Heart.

18.  Army Regulation 600-8-22 further outlines the criteria for award of the Bronze Star Medal (BSM).  Paragraph 3-13d (2) states, in effect, that the BSM 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 WW II.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that Item 3 of his WD AGO Form 53-55 should be corrected to show his rank as SSG, and that he be awarded the Purple Heart with Oak Leaf Cluster.

2.  There is no evidence in the applicant's reconstructed records that show he was recommended for or promoted to the rank of SSG.  His last rank upon separation from the Army was Sgt.  Therefore, he is not entitled to correction in Item 3 of his WD AGO Form 53-55 to show SSG.

3.  The applicant's medical records show that he was injured when he fell off a tank at 1600 hours, on 15 April 1945, in Germany.  Since the applicant was not blown off the tank by enemy mortar fire, it is reasonable to conclude that the injury was a result of an accident.  Just because an injury occurs while in a combat environment does not entitle a Soldier to the Purple Heart.  An injury has 
to be as a result of enemy action to warrant award of the Purple Heart.  Therefore, the applicant is not entitled to correction of his records to show the Purple Heart with Oak Leaf Cluster.

4.  In addition, by regulation, the BSM is authorized to members who received the CIB during World War II.  The evidence shows that the FSM received the CIB during World War II, as confirmed by an entry in Item 31 of his separation document.  As a result, he is entitled to the BSM and it would be appropriate to add this award to Item 33 of his separation document at this time.

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 showing the award of the Bronze Star Medal.

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 promotion to the rank of SSG and award of the Purple Heart with Oak Leaf Cluster.



	___________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)                                         AR20080005274



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ABCMR Record of Proceedings (cont)                                         AR20080005274



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