IN THE CASE OF:	  

		BOARD DATE:	        3 February 2009

		DOCKET NUMBER:  AR20080015388 


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 correction of his WD AGO Form 53-55 (Enlisted Record and Report of Separation) to show award of the Purple Heart, the American Defense Service Ribbon, and the American Campaign Service Ribbon. 

2.  The applicant states that he was wounded in action during the Rhineland campaign of World War II (WWII) and that his separation record is missing this and other awards.  

3.  The applicant provides a copy of his WD AGO Form 53-55, dated 2 November 1945; a copy of his Honorable Discharge Certificate, dated 2 November 1945; a self-authored statement, dated 25 June 1996; a self-authored affidavit, dated 6 May 1992; photographs of several WWII veterans; photographs of various unit patches; a letter, dated 24 May 1945, from the Commanding General of the 42nd Infantry Division; an extract of General Orders Number 44, issued by the War Department on 6 June 1945; a map of Europe; an affidavit, dated 12 September 1987; from his former first sergeant; an affidavit, dated 23 May 1990, from his former company commander; and an affidavit, dated 27 October 1992, from a former unit member, 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 Army Board for Correction of Military Records (ABCMR) originally considered the applicant’s request on 21 December 1994.  The Record of Proceedings is not available; therefore, this case is being reconsidered “de novo” or "anew." 

3.  The applicant's WD AGO Form 53-55 shows he enlisted in the Army of the United States and entered active duty in Hartford, Connecticut, on 17 July 1942.  This form also shows that at the time of his separation, the applicant held military occupational specialty (MOS) 648 (Radio Repairman) and that he was assigned to Company B, 818 Tank Destroyer (TD) Battalion.

4.  The applicant’s WD AGO Form 53-55 shows he departed the United States on 14 April 1943 and arrived in the Mediterranean Theater of Operations (MTO). He then departed the MTO on 27 September 1944 and arrived in the European-African-Middle Eastern (EAME) Theater on 29 September 1944.  He departed the EAME Theater on 18 October 1945 and arrived back in the United States on 29 October 1945.

5.  The applicant’s WD AGO Form 53-55 shows he completed 9 months and 2 days of continental service and 2 years, 6 months, and 16 days of foreign service.  He was honorably separated on 2 November 1945. 

6.  Item 31 (Military Qualifications and Date) of the applicant’s WD AGO Form 53-55 shows the entry “None.” 

7.  Item 32 (Battles and Campaigns) of the applicant WD AGO Form 53-55 shows he participated in the Central Europe, Naples-Foggia, Rome-Arno, and Rhineland campaigns during his service in WWII.

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

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

10.  The applicant’s records do not contain orders awarding him the Purple Heart. 

11.  Item 11 (Significant Diseases, Wounds, and Injuries) of the applicant’s     WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge or Release from Active Duty or Retirement), dated 1 November 1945, shows the applicant suffered an injury to his right arm with a piece of wood, after an air-raid in June 1943 while in Africa and that he received aid and returned to duty.  The attending physician, however, did not indicate that this injury was in "Line of Duty."

12.  The applicant provided a self-authored statement, a self-authored affidavit, and three affidavits from his former 1SG, former commander, and a former unit member as follows:

	a.  In his self-authored statement, dated 25 June 1992, the applicant states that he was assigned to the 168th Chemical Company which provided smoke screen in support of the war effort.  As the war drew to a close, the front lines became very fluid and disorganized, resulting in several members killed, wounded, or captured.  Several of the homebound troops were reassigned to other commands whereas he joined the 818th Tank destroyer Battalion.  His paperwork for the Purple Heart was either not fully processed or misfiled/lost.  At the time of his discharge, he was told it would take weeks if not months to locate all the paperwork and that having been away from home for a long time, he did not want to wait for the paperwork.

	b.  In his self-authored affidavit, dated 6 May 1992, the applicant states he was wounded as a result of enemy action by shellfire that damaged a building and that he was evacuated to a hospital in the vicinity of Haguenau, France.  His injuries consisted of broken ribs, laceration, and contusions.  He remained hospitalized for three weeks after which he was released to his unit in Bad Kissingin, Germany.  

	c.  In an affidavit, dated 23 May 1990, the applicant's former company commander (a retired lieutenant colonel at the time he authored his statement) states that he was the company commander of the 168th Chemical Company from 1942 to April 1944 and battalion commander of the 22nd Chemical Battalion from April 1944 to 1945.  He adds that the applicant joined his company in October 1942 and served under his command until the end of the war in Europe. He further adds that on or about 20 March 1945, the applicant was wounded in action by enemy shellfire in the vicinity of Wissembourg, France, and Worms, Germany, and that he was evacuated by ambulance to a field hospital in the Hagenau area of France and that he rejoined the company after recovery from his wounds.

	d.  In an affidavit, dated 12 September 1987, the applicant’s former 1SG (now a retired captain) states that he was the 1SG of the 168th Chemical Smoke Generator Company, 22nd Chemical Battalion, and served in that capacity from 1942 until the end of WWII in Europe.  He adds that the applicant was a member of his company and that on or about 22 March 1945, the applicant was wounded by shellfire near Wissemberg, France.  He was evacuated by ambulance to a hospital in the vicinity of Haguenau, France, and rejoined the company two weeks later in the vicinity of Brucknau, Germany.

	e.  In affidavit, dated 27 October 1992, a former member of the 168th Chemical Company gives an overview of his military background and history of assignments.  He adds that he remembers the applicant was injured in the right arm during a heavy air-raid on 6 or 7 July 1943 when a bomb hit near the gun operations room and bunker in Bizerte, Tunisia.  He also remember the applicant was wounded on or about 3 March 1945 near Wissembourg, France, near the German border when constant shelling from railroad guns demolished a building resulting in the applicant being struck by debris and that he helped him to the aid station where he was ultimately evacuated by ambulance.  He returned to the 168th Chemical Company a few weeks later when the company was deep in Germany.

13.  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.

14.  Army Regulation 672-5-1 (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.

15.  Army Regulation 600-8-22 provides, in pertinent part, that the American Defense Service Medal (ADSM) was established by Executive Order 8808.  It is awarded for service between 8 September 1939 and 7 December 1941 under orders to active duty for a period of 12 months or longer.  A clasp, with the inscription "Foreign Service", is worn on the ADSM to denote service outside the continental limits of the United States, including service in Alaska, as a member of a crew of a vessel sailing ocean waters, flights over ocean waters, or as an assigned member of an organization stationed outside the continental limits of the United States. Possession of a clasp is denoted by the wearing of a bronze service star on the service ribbon. 

16.  Army Regulation 600-8-22 provides, in pertinent part, that the American Campaign Medal was established by Executive Order 9265, as amended by Executive Order 9706, 15 March 1946.  It is awarded for service within the American Theater between 7 December 1941 and 2 March 1946 under any of the following conditions: on permanent assignment outside the continental limits of the United States; permanently assigned as a member of a crew of a vessel sailing ocean waters for a period of 30 consecutive days or 60 nonconsecutive days; outside the continental limits of the United States in a passenger status or on temporary duty for 30 consecutive days or 60 nonconsecutive days; in active combat against the enemy and was awarded a combat decoration or furnished a certificate by the commanding general of a corps, higher unit, or independent force that the Soldier actually participated in combat; or within the continental limits of the United States for an aggregate period of 1 year.  The eastern boundary is located from the North Pole, south along the 75th meridian west longitude to the 77th parallel north latitude, thence southeast through Davis Strait to the intersection of the 40th parallel north latitude and the 35th meridian west longitude, thence south along the meridian to the 10th parallel north latitude, thence southeast to the intersection of the Equator and the 20th meridian west longitude, thence south along the 20th meridian west longitude to the South Pole. The western boundary is located from the North Pole, south along the 141st meridian west longitude to the east boundary of Alaska, thence south and southeast along the Alaska boundary to the Pacific Ocean, thence south along the 130th meridian to its intersection with the 30th parallel north latitude, thence southeast to the intersection of the Equator and the 100th meridian west longitude, thence south to the South Pole.  

17.  Review of the Applicant records indicates his entitlement to additional awards that are not shown on his WD AGO Form 53-55.

18.  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.


19.  Item 32 of the Applicant 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 applicant participated in the Central Europe, Naples-Foggia, Rome-Arno, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to correction of his WD AGO Form 53-55 to show award of the Purple Heart, the American Defense Service Ribbon, and the American Campaign service Ribbon.

2.  The evidence of record suggests that the applicant was wounded twice in combat during his service in WWII as follows:

	a.  In their affidavits, the applicant’s former company commander, first sergeant, and a former member of his unit attest that on or about 22 March 1945, the applicant was wounded by shellfire near Wissemberg, France, and was evacuated by ambulance to a hospital in the vicinity of Haguenau, France.  This is consistent with the applicant's affidavit.

	b.  In the same affidavit, the former unit member was present at the scene when the applicant was injured in the right arm during a heavy air-raid on 6 or 7 July 1943 when a bomb hit near the gun operations room and bunker in Bizerte, Tunisia.  This second injury is also consistent with entry on the applicant’s WD AGO Form 38, dated 1 November 1945, which lists an injury to his right arm with piece of wood, after an air-raid in June 1943 in Africa.

3.  The evidence of record shows that the applicant 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.

4.  With respect to the American Defense Service Ribbon, there is no evidence that the applicant served between 8 September 1939 and 7 December 1941 under orders to active duty for a period of 12 months or longer.  Therefore, he does not meet the criteria for this award.

5.  With respect to award of the American Campaign Medal, the evidence of record shows that the applicant served in active combat against the enemy and was awarded a combat decoration.  Therefore, he is entitled to award of the American Campaign Medal and correction of his WD AGO Form 53-55 to show this award.

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

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 Purple Heart (1st Oak Leaf Cluster), the World War II Victory Medal, the American Campaign Medal, and four 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 American Defense Service Ribbon.




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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)                                         AR20080015388



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ABCMR Record of Proceedings (cont)                                         AR20080015388



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