IN THE CASE OF:	  

		BOARD DATE:	  26 August 2008

		DOCKET NUMBER:  AR20080010202 


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 (PH) and Bronze Star Medal (BSM).

2.  The applicant states, in effect, that he should be awarded the PH for being wounded in action on 19 February 1945.  He also asks that consideration be given to waiving the statute of limitations in his cases because he only recently read a book authored by a former sergeant of M Company, Mortar Platoon, that he remembered absolutely nothing after coming out of the minefield, including being put on a “Weasel” and taken away for immediate treatment.  He does recall being hospitalized prior to that incident for about a week in January 1945, for a swollen stiff right arm and being released without treatment.  He indicates that he slept between two men with jaundice and soon after contracted Hepatitis for which he was continually hospitalized from 9 March 1945 through his discharge.  He further states that he should receive an award for service in combat.

3.  The applicant provides the following documents in support of his request:  Self-Authored Statements; Separation Document (WD AGO Form 53-55) and Discharge Certificate; Department of Veterans Affairs (VA) Form P-80b, dated 
17 November 1945; VA Letter, dated 23 April 1948; Self-Authored Outline of Service; Memoir-Titled “On Being an Infantryman”; Third-Party Letter, dated 
28 June 1945; Document Titled “Through the Switch” Chapter 16; and a 2-Page Extract of 94th Infantry Division Unit History. 

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 (NPRC) in 1973.  It is believed his records were lost or destroyed in that fire.  This case is being considered using a reconstructed file from NPRC and documents provided by the applicant, which include the applicant's WD AGO Form 53-55, Army Separation Qualification Record 
(WD AGO Form 100), Certificate of Disability for Discharge (WD AGO Form 40), and Medical Record Documents.  

3.  The applicant’s WD AGO Form 53-55 shows he enlisted in the Army on
14 November 1942 and entered active duty on 1 April 1943.  It also shows he held military occupational specialty (MOS) 230 (Topographical Surveyor), and that he served in the European Theater of Operations (ETO) from 13 August 1944 through 23 May 1945.  It further indicates that he was credited with participating in the Rhineland, Ardennes, and Northern France campaigns of World War II.   

4.  Item 31 (Military Qualification and Date) of the applicant’s WD AGO Form 
53-55 shows he earned the Combat Infantryman Badge (CIB), and Item 33 (Decorations and Awards) shows that during his active duty tenure, he earned the World War II Victory Medal, American Campaign Medal, and the 
European-African-Middle Eastern (EAME) Campaign Medal.  Item 34 (Wounds Received in Action) contains the entry "None," and the applicant authenticated the separation document with his signature in Item 56 (Signature of Person Being Separated) on 2 November 1945, the date of his discharge.  


5.  There are no documents in the reconstructed file that indicate the applicant was ever recommended for or awarded the PH by proper authority while serving on active duty.  There are also no medical treatment records on file that indicate he was ever treated for a combat-related wound or injury during his active duty tenure.  

6.  The NPRC file contains two documents titled “Progress Notes” and “Final Summary,” which both detail medical treatment that the applicant received while he served in the ETO.  These documents show that after ten months of service in the ETO, the applicant suffered with symptoms of diarrhea, abdominal cramps, and pain during the latter part of February 1945.  On 9 March 1945, he was admitted to the hospital with clinically evident jaundice, and following treatment and repeat episodes of jaundice, he was evacuated to the ASF Convalescent Hospital at Camp Upton, New York, where he was treated on the Hepatitis ward and finally placed before a disposition board.

7.  A WD AGO Form 40, dated 1 November 1945, in the NPRC file shows that after careful consideration of all information obtainable and a critical examination, the applicant was found unfit for military service because of his hepatitis condition, which had required his continuous hospitalization from 9 March 1945. 

8.  The applicant's WD AGO Form 100, dated 2 November 1945, includes an entry under the heading “Summary of Military Occupation and Civilian Conversions,” which shows that the applicant was awarded the BSM, Army Good Conduct Medal, CIB, and EAME with 3 bronze service stars.

9.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to award a PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that the wound was treated by military medical personnel, and a record of this medical treatment must have been made a matter of official record.  A disease not directly caused by enemy agents is an example of an injury or wound which clearly do not justify award of the PH.

10.  Paragraph 3-13d (2) of the awards regulation states, in effect, that the BSM is authorized to members of the Armed Forces of the United States who, after 6 December 1941, were cited in orders or awarded a certificate for exemplary conduct in ground combat against an armed enemy between 7 December 1941 and 2 September 1945.  This paragraph also stipulates that for this purpose, an award of the CIB is considered as a citation in orders.  An Oak Leaf Cluster is awarded for second or subsequent award of the BSM.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his records be corrected to show his entitlement to the BSM has been carefully considered and found to have merit.  The evidence confirms the applicant was awarded the BSM during his active duty tenure, as evidenced by an entry on his WD AGO Form 100, and that as a result of his having received the CIB, he is entitled to a second award (BSM 1st Oak Leaf Cluster) of the BSM based on his exemplary conduct in ground combat against an armed enemy while serving in the ETO between 13 August 1944 and 23 May 1945.  Therefore it would be appropriate to award him the BSM (1st Oak Leaf Cluster) and to correct the list of awards contained on his separation document accordingly.

2.  The applicant's WD AGO Form 100 also confirms he earned the Army Good Conduct Medal and 3 bronze service stars with his EAME Campaign Medal during his active duty tenure.  Therefore, it would also be appropriate to add these awards to his separation document at this time.  

3.  The applicant's contention that he should be awarded the PH was also carefully considered.  However, in order to support award of the PH, there must be evidence that the wound for which the award is being made was received as a result of enemy action, that it required treatment by military medical personnel, and a record of this treatment must have been made a matter of official record.  

4.  The available documentary evidence in this case fails to show the applicant was ever wounded in action, or treated for a combat-related wound or injury by military medical personnel.  It also fails to show he was ever recommended for or awarded the PH by proper authority while serving on active duty.  

5.  Further, Item 33 of the applicant's WD AGO Form 53-55 does not include the PH, and Item 34 contains the entry "None," which indicates he was never wounded as a result of enemy action.  The applicant authenticated the WD AGO Form 53-55 with his signature on the date of his separation.  His signature, in effect, was his verification that the information contained on the separation document, to include the entries in Item 33 and Item 34, was correct at the time the separation document was prepared and issued.  

6.  Absent any evidence to show the applicant was ever wounded in action or awarded the PH, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  As a result, it would not be appropriate or serve the interest of all those who served in World War II and who faced similar circumstances to grant this portion of the requested relief.  

7.  The applicant and all others concerned should know that the decision regarding award of the PH 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.  

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 awarding him the Bronze Star Medal (1st Oak Leaf Cluster) [2nd Award] for his exemplary conduct in ground combat against an armed enemy while serving in the ETO between 13 August 1944 and 23 May 1945; by amending Item 33 of his WD AGO Form 53-55 to add the Bronze Star Medal (1st Oak Leaf Cluster) [2nd Award], Army Good Conduct Medal, and 3 bronze service stars for wear on his already-awarded European African Middle Eastern Campaign Medal; and by providing him a correction to his separation document that includes these changes.  

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 award of the Purple Heart.



      ________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)                                         AR20080010202



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080010202



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1