IN THE CASE OF:	  

		BOARD DATE:	        22 January 2009

		DOCKET NUMBER:  AR20080014143 


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 the records of his deceased father, a former service member (FSM), be corrected to show award of the Purple Heart. 

2.  The applicant states, in effect, he remembers his deceased brother showing him his father’s medals which included the Purple Heart.  He adds that he knows this because he is a former member of the U.S. Marine Corps (USMC) and the Purple Heart somehow has remained on his mind, in addition to the stories that his father told him.  He also adds that his father showed him his wounds and told him that he was shipped to France to recover from his wounds. 

3.  The applicant provides a copy of the FSM’s WD AGO Form 53-55 (Enlisted Record and Report of Separation), dated 7 October 1945; a copy of the FSM’s Honorable Discharge Certificate, dated 8 November 1941; a copy of the FSM’s certificate of death, dated 13 January 1989; and a copy of his own birth certificate, dated (filed) 6 March 1959, in support of his 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 FSM’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 in 1973.  It is believed that the FSM’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The FSM’s WD AGO Form 53-55 shows he was inducted into the Army of the United States and entered active duty at Fort MacArthur, California, on 24 April 1941.  This form also shows that at the time of his separation, he held military occupational specialty (MOS) 060 (Cook) and was assigned to Headquarters Company, 335th Infantry Regiment.  

4.  The FSM's WD AGO Form 53-55 shows he departed the United States on 29 September 1944 and arrived in the European-African-Middle Eastern (EAME) Theater on 10 October 1944 and departed the EAME Theater on 19 September 1945 and arrived back in the United States on 27 September 1945.  

5.  The FSM's WD AGO Form 53-55 shows he completed 2 years, 5 month, and 15 days of continental service and 11 months and 29 days of foreign service.  He was honorably separated on 7 October 1945. 

6.  Item 31 (Military Qualifications and Date) of the FSM’s WD AGO Form 53-55 shows he was awarded the Combat Infantryman Badge on 1 January 1945. 

7.  Item 32 (Battles and Campaigns) of the FSM’s WD AGO Form 53-55 shows he participated in the Ardennes, Central Europe, and Rhineland campaigns during his service in World War II (WWII).

8.  Item 33 (Decorations and Citations) of the FSM's WD AGO Form 53-55 shows he was awarded the Good Conduct Medal, the American Defense Service Medal, and the European-African-Middle Eastern Campaign Medal.  Item 33 does not show award of the Purple Heart.

9.  Item 34 (Wounds Received in Action) of the FSM's WD AGO Form 53-55 contains the entry "None."

10.  The FSM’s reconstructed records do not contain General Orders awarding him the Purple Heart. 

11.  The Purple Heart was established by General George Washington at Newburgh, New York on 7 August 1782 during the Revolutionary War.  It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action.

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 been treated by medical personnel, and the medical treatment must have been made a matter of official records.

13.  Review of the FSM's records indicates his entitlement to additional awards that are not shown on his WD AGO Form 53-55.

14.  Army Regulation 600-8-22 provides, in pertinent part, that the Bronze Star Medal 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 World War II.

15.  Army Regulation 600-8-22 provides, in pertinent part, for award of the World War II Victory Medal.  It is awarded for service between 7 December 1941 and 31 December 1946, both dates inclusive.

16.  Item 32 of the FSM's WD AGO Form 53-55 shows he was awarded the European-African-Middle Eastern Campaign Medal.  Additionally, Item 32 of his WD AGO Form 53-55 shows that the FSM participated in the Ardennes, Central Europe, and Rhineland campaigns during his service in WWII.  Army Regulation 600-8-22 states, in pertinent part, that a bronze service star will be awarded for wear on the European-African-Middle Eastern Campaign Medal for participation in each campaign.
17.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) shows that Headquarters Company, 335th Infantry Regiment was awarded the Meritorious Unit Commendation from 9 November 1944 to 8 May 1945, based on General Orders 162, issued by the 84th Infantry Division on 23 June 1945.  Furthermore, the 335th Infantry Regiment received occupation credit in Germany for the period 2 May 1945 through 31 October 1945.

18.  Army Regulation 600-8-22 provides, in pertinent part, that the Army of Occupation Medal is awarded for service of thirty consecutive days at a normal post of duty in a qualifying location.  Personnel at a qualifying location as an inspector, courier, escort, temporary or detached duty are precluded from eligibility.  For award of the Army of Occupation Medal, with Germany Clasp, qualifying service must have occurred between 9 May 1945 and 5 May 1955 and the European-African-Middle Eastern Campaign Medal must have been awarded prior to 9 May 1945.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the FSM was awarded the Combat Infantryman Badge.  Therefore, he is entitled to award of the Bronze Star Medal based on award of this Combat Infantryman Badge and correction of his WD AGO Form 53-55 to show the Bronze Star Medal.

2.  The evidence of records also shows that the FSM served with a unit in the EAME Theater that received occupation credit in Germany for the period 2 May 1945 through 31 October 1945.  Therefore, he is entitled to award of the Army of Occupation Medal, with Germany Clasp, and correction of his records to show this award.

3.  General orders awarded the FSM’s unit the Meritorious Unit Commendation during the period 9 November 1944 to 8 May 1945 which is not shown on his WD AGO Form 53-55; therefore, he is entitled to correction of his records to show this award.

4.  The evidence of record shows that the FSM served a qualifying period for award of the World War II Victory Medal, which is not shown on his records; therefore he is entitled to correction of his records to show this award.

5.  The evidence of record shows the FSM was awarded the European-African-Middle Eastern Campaign Medal.  Additionally, records show the applicant participated in three campaigns while serving in European Theater.  Therefore, he is entitled to award of three bronze service stars to be affixed to the European-African-Middle Eastern Campaign Medal.

6.  With respect to award of the Purple Heart, there are no general orders that show the FSM was awarded the Purple Heart and there is no evidence in his available service personnel records which shows he was wounded or injured as a result of hostile action or treated for such wounds.  Regrettably, absent evidence which conclusively shows that the FSM sustained wounds or injuries as a result of hostile action, that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is insufficient basis for awarding the Purple Heart to the FSM in this case.

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 adding the Bronze Star Medal, the Army of Occupation Medal with Germany Clasp, the Meritorious Unit Commendation, the World War II Victory Medal, and three bronze service stars to be affixed to his already-awarded European-African-Middle Eastern Campaign Medal to his WD AGO Form 53-55.

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.


3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of the FSM's service in arms.



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      _______ _   _______   ___
               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)                                         AR20080014143



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ABCMR Record of Proceedings (cont)                                         AR20080014143



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