IN THE CASE OF:	  

		BOARD DATE:	  16 APRIL 2009

		DOCKET NUMBER:  AR20090001190 


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 his record and separation document (WD AGO Form 53-55) be corrected to add the Purple Heart he was awarded for being wounded in action in Germany in September 1944, and by providing him the correct disability compensation due from the date of his discharge in 1945.   

2.  The applicant states, in effect, that he was wounded in action when a bomb exploded in his foxhole, breaking his back and killing two other Soldiers.  

3.  The applicant provides a statement from his son, dated 4 December 2008; a WD AGO Form 106 (Request for Decoration and/or Citation), dated
29 November 1945; and War Department, The Adjutant General's Office, subject: Letter Order, dated 4 January 1946, 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 applicant's military record is not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents on file for the Board to conduct a fair and impartial review of this case.  This case is being considered using reconstructed records, which primarily consist of the applicant's WD AGO Form 53-55, various documents remaining in the NPRC file, and the documents provided by the applicant.

3.  The applicant's WD AGO Form 53-55 shows that he was inducted into the Army of the United States on 17 November 1942 and entered active duty on
24 November 1942, and that he served in the European Theater of Operations (ETO) from 29 October 1943 through 13 November 1944.  Item 30 (Military Occupational Specialty) shows he held and served in military occupational specialty (MOS) 745 (Rifleman).  Item 31 (Military Qualifications) contains the entry "None" and Item 32 (Battles and Campaigns) shows he participated in the Normandy, Northern France, and Rhineland campaigns of World War II.  Item 33 (Decorations and Citations) shows that during his active duty tenure he earned the American Service Medal, Good Conduct Medal, World War II Victory Medal, and the European-African-Middle Eastern Campaign Medal, and Item 34 (Wounds Received in Action) contains the entry "None."

4.  The applicant's WD AGO Form 53-55 also shows that he held the rank of private first class (PFC) on the date of his separation, and that this was the highest rank he attained while serving on active duty.  It also shows that he was honorably separated on 30 November 1945, by reason of convenience of the government-demobilization, after completing a total of 3 years and 13 days of active military service.  

5.  The NPRC file contains a War Department Form 372A (Final Payment-Work Sheet) that was prepared on the applicant during his separation processing in November 1945.  This document shows the applicant received combat infantry pay from 1 November 1943 through 30 November 1945.  It also contains an Office of the Surgeon General (OTSG) Hospital Admission Record which shows the applicant was hospitalized in the ETO in September 1944, and that he was treated for a non-battle related injury to his back that he incurred in the line of duty.  


6.  The applicant provides a WD AGO Form 106, dated 29 November 1945, which recommended the applicant be awarded the PH for a broken back he received through concussion of shell during action taking place near Aachen, Germany, while serving as a mortar crewman with the 109th Infantry Regiment.

7.  The applicant also provides a War Department Letter Order, dated 4 January 1946, which was issued by The Adjutant General's Office.  This order awarded the applicant the PH for wounds received as a result of enemy action on
15 September 1944, in Aachen, Germany.  

8.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to award a PH there must be evidence that a member was wounded or injured as a result of enemy action, that the wound required treatment by military personnel, and a record of this treatment must have been made a matter of official record.  

9.  Review of the applicant's records indicates entitlement to additional awards and decorations that are not shown on his WD AGO 53-55.

10.  War Department Circular 269-1943 established the Combat Infantryman Badge (CIB) 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 CIB was awarded for exemplary conduct in action against the enemy.  War Department Circular 186-1944 further provided that the CIB was to be awarded only to infantrymen serving with infantry units of brigade, regimental or smaller size.  Additionally, World War II holders of the CIB received a monthly pay supplement known as combat infantry pay and holders of the Expert Infantryman Badge were entitled to expert infantry pay.  Therefore, Soldiers had economic as well as intangible reasons to ensure that their records were correct. Thus, pay records are frequently the best available source to verify entitlement to this award.  The Military Awards Branch of the U.S. Army Human Resources Command, (USAHRC) has advised in similar cases that, during World War II, the Combat Infantryman Badge was normally awarded only to enlisted individuals who served in the following positions:  Light machine gunner (604); Heavy machine gunner (605); Platoon sergeant (651); Squad leader (653); Rifleman (745); Automatic rifleman (746); Heavy weapons NCO (812); and
Gun crewman (864).  



11.  Army Regulation 600-8-22, paragraph 3-14, outlines the criteria for award of the Bronze Star Medal (BSM).  Paragraph 3-14d (2) states, in effect, that the BSM is authorized to members of the Armed Forces of the United States who, after 6 December 1941, were cited in orders or awarded a certificate for exemplary conduct in ground combat against an armed enemy between
7 December 1941 and 2 September 1945.  This paragraph also stipulates that for this purpose, an award of the CIB is considered as a citation in orders.  

12.  Army Regulation 600-8-22, in pertinent part, authorizes award of the European-African-Middle Eastern Campaign Medal for qualifying service in the European-African-Middle Eastern Theater of Operations for the period 7 December 1941 to 8 November 1945.  This regulation also authorizes a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation or listed in item 32 of the WD AGO Form 53-55.  This regulation states that authorized bronze service stars will be worn on the appropriate campaign or service medal including the European-African-Middle Eastern Campaign Medal.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was awarded the PH and it should be added to his record and separation document was carefully considered and found to have merit.  The evidence includes an OTSG Hospital Admission Record that shows the applicant was hospitalized in the ETO and treated for a back injury in September 1944.  Although this treatment record does not indicate the injury was battle related, a WD AGO Form 106, dated 29 November 1945 and War Department Letter Order, dated 4 January 1946, published by The Adjutant's General Office, confirm the applicant was subsequently recommended for and awarded the PH for wounds he received as a result of enemy action (broken back as a result of concussion of shell during action taking place near Aachen, Germany), while serving as a mortar crewman with the 109th Infantry Regiment, on 15 September 1944.  Therefore, it would be appropriate to add the PH to Item 33 of his WD AGO Form 53-55 and to amend Item 34 by deleting the current entry and replacing it with the entry "Broken back, 15 September 1944, Germany."  

2.  The evidence also shows the applicant held and served in MOS 745, as evidenced by the entry in item 30 of his WD AGO Form 53-55, and that he was authorized combat infantry pay at the time of his separation.  Therefore, it would also be appropriate to show he earned the CIB and to amend Item 31 of his 
WD AGO Form 53-55 accordingly.  Further, based on his receipt of the CIB, it 

would also be appropriate to award him the BSM for his exemplary conduct in ground combat against an armed enemy in the ETO between 29 October 1943 and 13 November 1944 and to add this award to Item 33 of his WD AGO Form 53-55.  

3.  The applicant participated in three campaigns during his service in the ETO.  Therefore, he is entitled to three bronze service stars for wear on the European-African-Middle Eastern Campaign Medal.

4.  The applicant is advised that disability compensation based on service-connected conditions is within the purview of the Department of Veterans Affairs (VA) and is administered by that agency.  Therefore, he should pursue his disability compensation claim through the VA.

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:

	a.  deleting from item 31 of the applicant's WD AGO 53-55 the entry "None," awarding the applicant the Combat Infantryman Badge for his qualifying service in the ETO, and adding to item 31 the entry "Combat Infantryman Badge";

	b.  deleting from item 32 of the applicant's WD AGO 53-55 the European-African-Middle Eastern Service Medal and replacing it with the European-African-Middle Eastern Campaign Medal with three bronze service stars;

	c.  deleting from item 34 of the applicant's WD AGO 53-55 the entry "None," and replacing it with the entry "Broken back, 15 September 1944, Germany";

	d.  awarding the applicant the Purple Heart for wounds received in action on 15 September 1944;
	e.  awarding the applicant the Bronze Star Medal based on award of the Combat Infantryman Badge;

	f.  adding to item 33 of the applicant's WD AGO Form 53-55 the Purple Heart and Bronze Star Medal; and

	g.  providing him a correction to his separation document that includes 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 providing disability compensation based on award of the Purple Heart.



      _________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)                                         AR20090001190



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ABCMR Record of Proceedings (cont)                                         AR20090001190



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