IN THE CASE OF:
BOARD DATE: 19 May 2009
DOCKET NUMBER: AR20090001206
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, as attorney-in-fact for the former service member (FSM), requests correction of the FSM's WD AGO Form 53-55 (Enlisted Record and Report of Separation) to show award of the Purple Heart.
2. The applicant states, in effect, that on 22 October 1945 the FSM was issued the Purple Heart for wounds received in action on 26 November 1944 in the European theater of operations and this award is not shown on his military records.
3. The applicant provides a copy of the FSM's WD AGO Form 53-55, a WD AGO Form 0718 (Requisition to Philadelphia Quartermaster Depot), a WD AGO Form 100 (Separation Qualification Record), and a Power of Attorney authorization 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The FSMs 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 FSMs 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. The FSM was inducted into the Army of the United States on 20 July 1943 and entered active duty on 10 August 1943. He served in the European theater of operations from 17 April 1944 through 14 June 1945 and was honorably discharged on 5 November 1945.
4. The FSMs WD AGO Form 53-55 shows the European-African-Middle Eastern Campaign Medal with four bronze service stars, the Good Conduct Medal, the American Campaign Medal, and the World War II Victory Medal as authorized awards. Item 34 (Wounds Received in Action) on his WD AGO Form 53-55 shows the entry "Not Available."
5. There are no orders for the Purple Heart in the available records. However, the applicant provided a WD AGO Form 0718, dated 22 October 1945, from the Adjutant General. This form states, in pertinent part, that the Secretary of War directs that the Purple Heart be forwarded for presentation to the FSM for wounds received in action on 26 November 1944 in the European area.
6. The FSM's WD AGO Form 100 states, in pertinent part, that he was captured by the Germans in Germany and was a prisoner of war (POW) from November 1944 to May 1945. A DA Form 1577 (Authorization for Issuance of Awards), dated 8 June 1988, shows the FSM was issued the POW Medal for being held as a POW.
7. 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.
8. Army Regulation 600-8-22 provides, in pertinent part, for award of the POW Medal. The regulation states that the POW Medal was authorized on 8 November 1985 and is awarded to individuals who in past armed conflicts were taken prisoner or held captive.
DISCUSSION AND CONCLUSIONS:
1. There are no orders for the Purple Heart. However, the 22 October 1945 WD AGO Form 0718 provided by the applicant states the Secretary of War directed that the Purple Heart be forwarded and presented to the FSM for wounds received in action on 26 November 1944 in the European area.
2. Any reasonable doubt should be resolved in the FSMs favor and, therefore, the WD AGO Form 0718 is accepted as a sufficient basis for adding the Purple Heart to the FSM's WD AGO Form 53-55. In addition, item 34 of the FSM's WD AGO Form 53-55 should be corrected to show he was wounded in action on 26 November 1944 in the European theater of operations.
3. The evidence of record shows the FSM was a POW in Germany during World War II and that he was issued the POW Medal. Therefore, his WD AGO Form 53-55 should be corrected to show this medal.
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. adding the Purple Heart and POW Medal to his WD AGO Form 53-55,
b. deleting the entry in item 34 of his WD AGO Form 53-55, and
c. adding the entry "26 November 1944 European Theater of Operations" in item 34 to his WD AGO Form 53-55.
_________________________
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) AR20090001206
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