IN THE CASE OF:	  

		BOARD DATE:	        28 AUGUST 2008

		DOCKET NUMBER:  AR20080008384 


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, the son of a deceased former service member (FSM), essentially requests that the FSM's military records be corrected to show the award of the Purple Heart and that he participated in six campaigns during World War II. 

2.  The applicant states, in effect, that he received his late father's Purple Heart, and that he was wounded in action on or near the beachhead at Anzio, Italy during World War II.  He also states that the FSM is not getting credit for his service to his country during a declared war, and that he deserves recognition.  He further essentially states that the FSM received a bronze arrowhead and six campaign stars, and that the FSM fought all the way to Germany.  He continued by stating that the arrowhead was for the invasion the FSM was in with the Fifth Army and the Seventh Army in Germany, and that the Army should be able to find the FSM's service records.

3.  The applicant provides the FSM's Certificate of Death, Certificate of Burial of U.S. War Veteran, and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), the FSM and wife's marriage certificate, his birth certificate, and a copy of a certificate showing that the FSM was awarded the Purple Heart for wounds received in action on 6 May 1944 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 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 majority of the FSM’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 FSM'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.  The available records show that the FSM was a member of the Army of the United States from 11 March 1941 to 19 September 1945; the date he was honorably released from active duty.  He also served on active duty in the Regular Army from 29 May 1952 to 30 July 1957.  The DD Form 214 that was issued to the FSM at the time of his retirement due to temporary disability shows that he was awarded the Good Conduct Medal (Second Award) and the National Defense Service Medal.

4.  The applicant essentially requests that the FSM's military records be corrected to show the award of the Purple Heart and that he participated in six campaigns during World War II.  The applicant provided a copy of a certificate which appears to show the FSM was awarded the Purple Heart in August 1964 for wounds received in action on 6 May 1944 near Anzio, Italy.  However, the available records cannot conclusively corroborate the authenticity of this certificate or confirm where or for how long the FSM served overseas.  The FSM's military records did contain a War Department Form 372A (Final Payment Work Sheet), which essentially shows that he was paid Foreign Service Pay for the period 1 May 1945 to 12 June 1945.  However, the National Archives and Records Administration Form 13164 (Information Releasable Under the Freedom of Information Act) does not state with any certainty where or how long the FSM served overseas, and does not show that he was awarded the Purple Heart.  

5.  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 been treated by military medical personnel, and the medical treatment must have been made a matter of official records.  This regulation also provides that there is no time limitation on requests for award of the Purple Heart.  Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire; the wound or injury must have required treatment by military medical personnel; and the record of medical treatment must have been made a matter of official Army records.  As with all personal decorations, announcement in orders are required.

6.  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.  This 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.  Paragraph 2-3 of this Regulation provides guidance on who may apply.  It states, in pertinent part, that depending on the circumstances, a child, spouse, parent or other close relative, heir, or legal representative (such as a guardian or executor) of the Soldier or FSM may be able to demonstrate a proper interest.  Applicants must send proof of proper interest with the application when requesting correction of another person's military records.

DISCUSSION AND CONCLUSIONS:

1.  The evidence provided by the applicant demonstrates that he has a proper interest in this case and satisfies the regulatory criteria necessary to establish his right to have this case considered by the Board.

2.  The evidence provided by the applicant, specifically, the copy of the certificate which appears to have awarded the FSM the Purple Heart for wounds received in action on 6 May 1944, was carefully considered.  However, this document, by itself and without corroborating orders, is insufficient to prove, by a preponderance of the evidence, that the FSM was awarded the Purple Heart.  Regrettably, absent evidence which conclusively proves that the FSM sustained wounds or injuries as a result of hostile action, that he was treated by medical personnel for those wounds, and that this treatment was made a matter of official record, there is insufficient basis upon which to correct the FSM's military records to show the award of the Purple Heart.

3.  Additionally, as the location and duration of the FSM's foreign service during World War II cannot be conclusively established based upon the available records, there is insufficient basis to correct the FSM's military records to show that he participated in six campaigns during World War II.

4.  The applicant is advised that if he can possibly locate his father's WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge) that was issued after his service in World War II, he should request reconsideration within 
1 year of the ABCMR's decision in this case.  This document, which most likely was 


authenticated by his father at the time of his release from active duty on 
19 September 1945, should contain information on any wounds he received in action, and also document most if not all of the campaigns that he participated in.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by his late father in service to the United States during World War II.  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)                                         AR20080008384



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ABCMR Record of Proceedings (cont)                                         AR20080008384



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