IN THE CASE OF:	  

		BOARD DATE:	  10 February 2009

		DOCKET NUMBER:  AR20080012618 


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 22 (Date of Induction), item 24 (Date of Entry Into Active Duty), item 30 (Military Occupational Specialty and No.), item 33 (Decorations and Awards), item 40 (Reason and Authority for Separation), item 41 (Service Schools Attended), and item 43 (Longevity for Pay Purposes) of his WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge) be corrected.

2.  The applicant states, in effect, that the items of his WD AGO Form 53-55 in question are in error and should be corrected.  He claims he was inducted into the Army and entered active duty in the month of March and not May, as is indicated on his WD AGO Form 53-55.  He claims this is evidenced by the fact he received his immunizations for small pox on 25 March 1943 and 7 April 1943, as indicated in item 35 (Latest Immunization Dates) of his WD AGO Form 
53-55.  He also states that item 30 should include the entry "Demolitions C/2" and item 33 should include the Purple Heart (PH).  He further indicates he is unsure what the appropriate entry in item 40 should be, but that he was injured in a shell burst during the Battle of the Bulge on 25 December 1944.  He claims he sustained a permanent bronchial condition as a result of this explosion for which he receives a 30 percent disability rating, and that he remained in Army hospitals until his discharge.

3.  The applicant provides a self-authored statement; WD AGO Form 53-55; and National Personnel Records Center (NPRC) letter, dated 4 July 2008, in support of his request.

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 NPRC in 1973.  It is believed his records were lost or destroyed in that fire.  This case is being considered using a reconstructed NPRC file that includes his WD AGO 
Form 53-55.

3.  The applicant’s NPRC file contains a National Archives and Records Administration document extract titled "Access to Archival Databases" (AAD).  It is a printed copy of the applicant’s AAD electronic file which shows he enlisted in the Army on 15 March 1943 in the rank of private.

4.  Item 5 (Component) of the applicant’s WD AGO Form 53-55 shows he was a member of the Enlisted Reserve Corps (ERC).  Item 22 shows he was inducted into the Army on 15 May 1943 and item 24 shows he entered active duty on 22 May 1943.  It further shows that he continuously served on active duty until being honorably discharged in the rank of technician fifth grade on 17 May 1945.

5.  The applicant’s WD AGO Form 53-55 also shows that he served in the European theater of operations (ETO) from 18 October 1943 to 14 March 1945 and that he was assigned to the 502nd Engineer Company.  Item 30 shows that he held military occupational specialty (MOS) 931 (Light and Heavy Truck Driver) and item 32 (Battles and Campaigns) shows that he participated in the Normandy, Northern France, and German campaigns of World War II.

6.  Item 33 of the applicant's WD AGO Form 53-55 shows that he earned the Army Good Conduct Medal (AGCM), European-African-Middle Eastern (EAME) Campaign Medal with 3 bronze service stars, and the Bronze Star Medal (BSM) during his active duty tenure.  Item 34 (Wounds Received In Action) contains the entry "one," which was not an authorized entry for item 34.
7.  Item 40 of the applicant's WD AGO Form 53-55 shows he was separated by reason of "Certificate of Disability for Discharge" under the provisions of Army Regulation 615-361 (Enlisted Men, Discharge Medical) and item 41 contains the entry "None Attended."  Item 43 shows he completed 2 years and 3 days of active military service and item 55 (Remarks) includes the entry "ERC" from 15 May 1943 to 22 May 1943."

8.  There are no documents in the applicant’s NPRC file to show that he was ever trained in, awarded, or served in a demolition MOS, or that shows he ever completed a demolition course of instruction.  There are also no orders or other documents on file that indicate he was ever wounded as a result of enemy action or that he was ever recommended for or awarded the PH while serving on active duty.

9.  The NPRC file contains an Office of the Surgeon General (OTSG) hospital admission record that shows the applicant was admitted to a hospital in the ETO on 20 January 1945 where he received medical treatment for an "asthma, bronchial" condition, which the hospital report categorized as a disease that existed prior to his entry into military service.  He was hospitalized for 116 days and the report indicates the circumstances were "not a traumatism."  There is no indication on the OTSG hospital report that the condition was battle related or that it was caused by enemy action.

10.  Technical Manual 12-235 (Enlisted Personnel Discharge and Release from Active Duty (Other Than at Separation Centers)), which prescribed the policy and procedure for the preparation and distribution of separation documents during the period in question, stated that item 22 will contain the date a member was inducted into the Army, item 23 will contain the date a member was enlisted in the Army, item 24 will contain the date a member entered active duty, item 30 will contain the member’s MOS title and number held, item 33 will contain all decorations and citations a member was awarded, item 40 will list the reason and authority for separation, item 41 will show all service schools a Soldier completed satisfactorily, and item 43 will contain all service which may be counted for longevity pay.

11.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 2-8 contains guidance on award of the PH.  It states, in pertinent part, that in order to support award of the PH there must be evidence confirming 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 medical treatment must have been made a matter of official record.  Paragraph 2-8h provides examples of wounds that do not qualify for award of the PH, which includes "Disease not directly caused by enemy agents."
12.  Department of the Army Pamphlet 672-1 (Unit Campaign Participation Credit Register-World War II) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during World War II.  This source confirms that the applicant’s unit (502nd Engineer Company) participated in the Ardennes-Alsace, Normandy, Northern France, and Rhineland campaigns and received assault landing credit for Normandy during his tenure of assignment in the ETO.  The Battle of the Bulge took place during the Ardennes-Alsace campaign/offensive (also known as the German offensive/campaign) from 16 December 1944 to 25 January 1945.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was inducted into the Army and entered active duty in March 1943 instead of May 1943 was carefully considered and found to have partial merit.  The applicant's NPRC file contains an AAD document that confirms the applicant enlisted on 15 March 1943, and his WD AGO Form 53-55 contains entries in item 35 that show he received his immunizations for small pox in March and April 1943.  As a result, it is reasonable to presume that the May entries contained in item 22 and item 24 of his separation document were in error and that the period of his ERC service entered in item 55 was also the result of an administrative error.  Therefore, it would be appropriate to correct item 22 to delete the entry in its entirety, correct item 23 to show that he enlisted on "15 March 1943," correct item 24 to show he entered active duty on "22 March 1943," and correct item 55 to show his period of service in the ERC was from "15 March 1943 to 21 March 1943."  Based on these corrections, item 43 should also be corrected to show he completed 2 years, 2 months, and 3 days of service for longevity for pay purposes.

2.  Further, based on the applicant’s service and campaign participation in the ETO, item 32 of his WD AGO Form 53-55 should be corrected by replacing the  "German Campaign" portion of the entry with the entry "Ardennes-Alsace" campaign, which includes participation in the Battle of the Bulge, and by adding the Rhineland campaign.

3.  The evidence of record shows that the applicant was separated by reason of "Certificate of Disability for Discharge" under the provisions of Army Regulation 615-361.  Accordingly, there is no basis to make any changes to item 40 of the separation document.

4.  His NPRC file contains no documentary evidence and he has failed to provide any to show he was ever trained in, awarded, or served in a demolition MOS, or that he completed a demolition course during his active duty tenure.  Therefore, there is an insufficient evidentiary basis to add entries related to demolition qualifications to either item 30 or item 41 of the applicant’s WD AGO Form 53-55.

5.  Item 34 contains the entry "one," which was not an authorized entry for item 34.  It is presumed this entry represents the entry "None."  By regulation, in order to support award of the PH, there must be evidence to show 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.  The OTSG report confirms the applicant was hospitalized for more than 3 months for an "asthma, bronchial" condition that existed prior to his military service.  This report indicates the condition was not battle related (received as a result of enemy action).  There are no medical treatment records in the NPRC file or provided by the applicant that indicate he was ever wounded in action or treated for a combat-related wound or injury.  Therefore, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.

6.  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 amending his WD AGO Form 53-55 as follows:

	a.  item 22 - delete the current entry in its entirety; 

	b.  item 23 - enter "15 March 1943"; 

	c.  item 24 - delete the current entry and replace it with the entry "22 March 1943"; 

	d.  item 32 - delete the German Campaign and add the "Ardennes-Alsace" and "Rhineland" campaigns, and change the European-African-Middle Eastern Campaign Medal entry in item 33 to show 4 bronze service stars; 

	e.  item 43 - delete the current entry and replace it with the entry "02 02 03"; 

	f.  item 55 - delete the "ERC from 15 May 1943 to 22 May 1943" entry and replace it with the entry "ERC from 15 to 21 March 1943; and 

	g.  issuing him a correction to his separation document to reflect 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 and to correction of entries in items 22, 30, 40, and 41 of his WD AGO Form    53-55.



      _________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)                                         AR20080012618



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ABCMR Record of Proceedings (cont)                                         AR20080012618



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