IN THE CASE OF:	  

		BOARD DATE:	       21 APRIL 2009

		DOCKET NUMBER:  AR20080014025 


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 reconsideration of his earlier request for award of the Purple Heart (First Oak Leaf Cluster), four bronze service stars, and correction of his records to show he was promoted to staff sergeant (SSG).  

2.  The applicant provided a personal statement in support of his request for reconsideration.  He referenced his previous Record of Proceedings (AR20080005274) in which his request for promotion to SSG and a cluster on his Purple Heart were denied.  He stated he did not have any more military records that he could add, but he does have the letters that he wrote to his mother during World War II.  He claimed that he did make squad sergeant (SSG) and that he had another bronze service star from the battle of Verdun, France.  All he wanted from the Army was a letter recognizing he was a squad sergeant or SSG in the 101st Regiment, 26th Division, a bronze service star, and a Purple Heart with First Oak Leaf Cluster.  The applicant described the steps needed to make rank in combat and he listed exhibits 1 through 8 submitted with his request.  

3.  The applicant continued by stating that he was thrown from a tank during mortar fire while advancing on the enemy.  He mentioned that there are many dangers while riding on top of a tank.  On the morning he was thrown from the tank, the tank sped up and began to swerve to avoid mortars.  The last thing he remembered was being thrown from the tank.  He felt that he would not have 


been thrown from the tank if it had not been for the mortar fire.  He stated the only medical reports available started from the evacuation hospital in England where it was reported that he "fell" off a tank.  

4.  The applicant provides a personal letter, dated 12 January 2009; eight letters addressed to his mother during World War II; and his previous Record of Proceedings, dated 24 July 2008, in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080005274 on 24 July 2008.

2.  The applicant has provided as new evidence letters addressed to his mother during World War II and a personal statement that will be considered by the Board.  

3.  On 9 January 2009, the applicant was issued a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) which shows the Bronze Star Medal, the European-African-Middle Eastern Campaign Medal with four bronze service stars, the Army of Occupation Medal with Germany Clasp, and the entry "CITATION OF THE DAY OF THE BELGIUM ARMY" were added to his WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge).  Therefore, the portion of the applicant's request regarding award of four bronze service stars will not be discussed further in this Record of Proceedings.  

4.  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.

5.  The applicant's WD AGO Form 53-55 shows he was inducted into the Army on 1 March 1943 and entered active duty on 8 March 1943.  His WD AGO Form 53-55 also shows he served in the European African-Middle-Eastern Theater during the period 30 Jun 1944 to 24 May 1945.  He was honorably discharged on 5 November 1945.

6.  His WD AGO Form 53-55 shows he was awarded the World War II Victory Medal, the American Campaign Medal, the European-African-Middle Eastern Campaign Medal, the Purple Heart, and the Army Good Conduct Medal.

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

8.  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."

9.  In the letter dated 20 April 1945 (Exhibit 6) addressed to his mother, the applicant stated, "Well mom I'm back in England now and the Doc says that the musales (sic) in my hips is strained purty (sic) bad.  But nothing else is wrong with me."  He also stated, "I'll try to tell you how I was hurt if my arm doesnt (sic) give out first.  We were riding on top of..."  The remaining part of the letter is not available.  Item 3 (Grade) and Item 38 (Highest Grade Held) of his WD AGO Form 53-55 show the entry "Sgt."  

10.  The applicant's letters dated 2 March 1945 (Exhibit 1), 5 April 1945 (Exhibit 3), 9 March 1945 (Exhibit 4), and 2 April 1945 (Exhibit 5), indicated that he was a "buck sergeant" and a "squad sergeant."  In his letter dated 20 April 1945 (Exhibit 6), he stated "I really hated to leave my outfit as my squad was holding the record for prisoners in our company.  And I would have made Staff Sgt. in a few days…"

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

12.  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.  A bronze oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Purple Heart.

13.  Army Regulation 615-5, then in effect, provided that enlisted Soldiers who were eligible for promotion would be recommended in writing, approved by the appropriate authority, and orders issued confirming the promotion.

14.  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 be completed as follows:  “Enter grade held at time of separation and date of rank or appointment."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's WD AGO Form 53-55 shows that he was wounded on           27 December 1944 (Luxemburg) as a result of hostile action.  He was awarded the Purple Heart for those wounds and it was added to his WD AGO Form 53-55.

2.  The Final Summary in the applicant's medical records indicates he was injured when he fell off a tank and he sustained a severe contusion of his left hip.  However, this medical document does not verify that this injury was the result of hostile action.  There is no evidence which indicates the applicant was wounded a second time as a result of hostile action.  It is also possible that his commander did not believe that the enemy caused his injuries to a degree sufficient to warrant award of the Purple Heart.  Therefore, regrettably, there is insufficient evidence on which to grant him award of the Purple Heart (First Oak Leaf Cluster).

3.  There is no evidence in the applicant's reconstructed records that show he was promoted to the rank of SSG.  It is very possible that he was performing the duties and wearing the rank of an acting SSG pending his official promotion; however, as he acknowledged in his 20 April 1945 letter he would have (emphasis added) made SSG in the next few days had he remained in his unit.  His last rank upon separation from the Army was listed as Sgt.  Therefore, there is insufficient evidence on which to base correction of records to show he was promoted to SSG.

4.  The applicant's personal letters to his mother during World War II were carefully considered.  However, these documents were not sufficiently mitigating to grant relief in this case.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___XX_____  ___XX_____  ___XX_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 to amend the decision of the ABCMR set forth in Docket Number AR20080005274, dated 24 July 2008.




      _______ _   _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)                                         AR20080014025





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ABCMR Record of Proceedings (cont)                                         AR20080014025



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