IN THE CASE OF:	    

		BOARD DATE:	        19 March 2009

		DOCKET NUMBER:  AR20080016033 


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, the widow of a deceased former service member (FSM), requests that item 33 (Does Service Record Show Participation in Action or in Battles, Wounds, or Other Injuries Received in Service?) of her late spouse's WD AGO Form 40 (Certificate of Disability for Discharge) be corrected to show the entry "YES."  She also requests, in effect, that his records be corrected to show all his awards.

2.  The applicant states, in effect, a metal plate was placed into the FSM's skull and that he was compensated for this service-connected injury which was the cause of his death.  She concludes that the FSM received the Purple Heart for this injury and she would like his records to show the reason for the award.

3.  The applicant provides a WD AGO Form 40 in support of this 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 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 to conduct a fair and impartial review of this case.

3.  Records show the FSM was inducted into the Army on 5 February 1943.  He served in the European theater of operations as an infantryman from February 
1944 through September 1944 and was honorably discharged on 17 February 1945.

4.  Item 7 (After Careful Consideration of All Information Obtainable and a Critical Examination, We Find This Individual Unfit for Military Service Because of: [specify]) of the FSM's WD AGO Form 40 shows, in part, the applicant was wounded in action by mortar shell fragments on 22 July 1944 while serving in France and item 33 of this form shows the entry "NO."

5.  Item 33 (Decorations and Citations) of the applicant's WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) shows he was awarded the Purple Heart and the Good Conduct Medal.

6.  War Department Circular 269-1943 established the Combat Infantryman Badge and the Expert Infantryman Badge to recognize and provide an incentive to infantrymen.  The Expert Infantryman Badge was to be awarded for attainment of certain proficiency standards or by satisfactory performance of duty in action against the enemy.  The Combat Infantryman Badge was awarded for exemplary conduct in action against the enemy.  War Department Circular 186-1944 further provided that the Combat Infantryman Badge was to be awarded only to infantrymen serving with infantry units of brigade, regimental, or smaller size.

7.  Army Regulation 600-8-22 (Military Awards) 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.  This means, in effect, that the Bronze Star Medal is to be awarded to individuals who were authorized either badge for service during World War II.
8.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that item 33 of the FSM's WD AGO Form 40 should be corrected has been carefully reviewed and found to have merit.

2.  The WD AGO Form 40, item 7, clearly shows the FSM was wounded in action on 22 July 1944 and his WD AGO Form 53-55 shows he was awarded the Purple Heart.  Therefore, item 33 of this form should be corrected to show the appropriate entry.

3.  The FSM served as an infantryman during World War II and was awarded the Purple Heart for wounds sustained in combat.  It appears he met the eligibility criteria for award of the Combat Infantryman Badge.  As a result, his records should be corrected to show this award.

4.  Based on award of the Combat Infantryman Badge, the FSM qualifies for award of the Bronze Star Medal.  Therefore, his records should be corrected to show this award.

5.  The FSM served a period of qualifying service for award of the World War II Victory Medal.  Therefore, his records should be corrected to show this award.

BOARD VOTE:

__X_____  ___X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  awarding the FSM the Combat Infantryman Badge for exemplary conduct in action against the enemy on 22 July 1944 and the Bronze Star Medal based upon award of the Combat Infantryman Badge; 

	b.  amending his WD AGO Form 53-55 to add the Bronze Star Medal, the World War II Victory Medal, and the Combat Infantryman Badge; and 

	c.  providing an appropriate document to show amendment of item 33 of his WD AGO Form 40 to show the entry "YES."



      __________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)                                         AR20080016033



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ABCMR Record of Proceedings (cont)                                         AR20080016033



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