IN THE CASE OF:	  

		BOARD DATE:	       6 AUGUST 2009

		DOCKET NUMBER:  AR20090002526 


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 the records of his deceased brother, a former service member (FSM), be corrected by adding the Combat Medical Badge (CMB) and the "V" (Valor) Device to his Bronze Star Medal (BSM).  

2.  The applicant states, in effect, the awards in question were never included in the FSM's record or on his WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge). 

3.  The applicant provides his birth certificate, the FSM's death certificate, news articles explaining his relationship to the FSM, 35th Infantry Division BSM orders, certificates/citations, a CMB award letter, photographs of the FSM, and a “V Mail” letter from the FSM. 

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 complete 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 FSM’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 a reconstructed record that consists of the FSM's WD AGO Form 53-55, documents remaining on file in the FSM's NPRC file, and documents provided by the applicant.  

3.  The FSM's WD AGO Form 53-55 shows he enlisted in the Army on 
1 November 1940 and entered active duty on 23 December 1940.  It also shows he served with the Medical Detachment, 134th Infantry Regiment, in the European Theater of Operations (ETO) from 25 May 1944 through 6 June 1945.  It further shows that technician five (Tec 5) is the highest rank he held while serving on active duty.  

4.  Item 32 (Battles and Campaigns) of the FSM's WD AGO Form 53-55 shows he participated in the Normandy, Northern France, Rhineland, Ardennes, and Central Europe campaigns of World War II.  Item 33 (Decorations and Citations) shows he earned the following awards during his active duty tenure:  BSM 1st Oak Leaf Cluster (2nd Award), Army Good Conduct Medal (AGCM), American Defense Service Medal (ADSM), and Purple Heart (PH).  Item 34 contains an entry indicating he was wounded in action in the ETO, on 5 August 1944.  The 
WD AGO Form 53-55 further shows the FSM was honorably separated, on 
21 June 1945, after completing a total of 4 years, 7 months, and 21 days of active military service.  He served 3 years, 4 months, and 5 days in the continental United States.

5.  The FSM's NPRC file contains Headquarters, 35th Infantry Division General Orders (GO) Number (#) 49, dated 1 November 1944, awarding the FSM the BSM for meritorious service in connection with military operations against an enemy of the United States in France during the period 25 July to 30 September 1944.  

6.  The NPRC file also contains Headquarters, 35th Infantry Division GO # 8, dated 22 January 1945, awarding the FSM the BSM 1st Oak Leaf Cluster
(2nd Award) for heroism in connection with military operations against an enemy of the United States in Germany on 13 and 14 December 1944.  The NPRC file also contains the certificate and citation issued for this heroism award, which outlines the FSM's heroic actions.  
7.  The NPRC file also contains Headquarters, Army Service Forces, Office of the Adjutant General, Washington D.C. letter, dated 6 August 1945, in which the Commanding General, Army Service Forces directed a CMB be issued to the FSM.  This letter confirms the FSM's eligibility for the award was established in Headquarters, 134th Infantry Regiment GO # 10, dated 23 July 1944.  

8.  The NPRC file also contains an NPRC letter, dated 24 November 2008, which authorized the issue of the following awards to the FSM:  BSM 1st Oak Leaf Cluster (2nd Award), PH, AGCM, ADSM, American Campaign Medal (ACM), European-African-Middle Eastern (EAME) Campaign Medal with 1 silver service star, World War II Victory Medal, and Honorable Service Lapel Button World War II (WWII). 

9.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 3-14 of the awards regulation provides guidance on award of the BSM and states, in pertinent part, that it may be awarded for meritorious service, meritorious achievement, or acts of heroism.  A "V" Device is authorized for a BSM awarded for heroism (valor) and an Oak Leaf Cluster is awarded to denote a 2nd or subsequent award of the BSM.    

10.  Paragraph 3-14d (2) of the awards regulation authorizes award of the BSM 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 Combat Infantryman Badge (CIB) or CMB is considered as a citation in orders.  

11.  Paragraph 5-11 of the awards regulation contains guidance on the Army of Occupation Medal (AOM).  It states, in pertinent part, that the AOM is authorized for the occupation of Germany (exclusive of Berlin) between 9 May 1945 and 
5 May 1955. (Service between 9 May and 8 November 1945 will be counted only if the European-African-Middle Eastern Campaign Medal was awarded for service before 9 May 1945).   

12.  Paragraph 5-12 of the awards regulation contains guidance on award of the World War II Victory Medal and states, in pertinent part, that it is authorized for service between 7 December 1941 and 31 December 1946.  Paragraph 5-13 contains guidance on the EAME Campaign Medal.  It states, in pertinent part, that a bronze service star is authorized with this award for each campaign a member is credited with participating in while serving in the ETO.  A silver service star is issued in lieu of five bronze service stars to denote participation in five campaigns.   
13.  Paragraph 5-15 of the awards regulation contains guidance on the ACM and states, in pertinent part, that it is authorized for completing an aggregate period of 1 year of service within the continental limits of the United States between 
7 December 1941 and 2 March 1946.

14.  Paragraph 6-5 of the awards regulation contains guidance on the "V" Device and states, in pertinent part, that a "V" Device is authorized to be worn with the BSM to denote an award for heroism/valor.   

15.  Paragraph 8-7 of the awards regulation contains guidance on the CMB.  It states, in pertinent part, that the CMB was authorized for medical personnel during World War II who were assigned or attached to or under operational control of any ground combat arms units or brigade or smaller size, who satisfactorily performed medical duties while the unit was engaged in active ground combat, provided they were personally present and under fire.  

16.  Department of the Army Pamphlet 672-1 (Unit Campaign Participation Credit Register-World War II) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during World War II.  This source confirms that during his tenure of assignment, the FSM’s unit (Medical Detachment, 134th Infantry Regiment) earned the Distinguished Unit Citation (DUC) (now known as the Presidential Unit Citation (PUC)), Meritorious Unit Commendation (MUC), AOM with Germany Clasp and French Croix de Guerre.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the record and WD AGO Form 53-55 of the FSM should be corrected to show he earned the CMB and the "V" Device for his BSM was carefully considered and found to have merit.  

2.  The evidence includes orders awarding the FSM the BSM 1st Oak Leaf Cluster (2nd Award) for heroism on 13 and 14 December 1944 in Germany, and a letter from the Commanding General, Army Service Forces, which confirmed the FSM's eligibility for the CMB and directed he be issued this award.  Further, based on awarded the CMB, the FSM is also eligible for a third award of the BSM (2nd Oak Leaf Cluster) for his exemplary conduct in ground combat against an armed enemy in the ETO.  Therefore, it would be appropriate to correct the FSM's record and WD AGO Form 53-55 by adding the CMB and BSM 2nd Oak Leaf Cluster and with "V" Device.  

3.  The evidence also confirms that based on his World War II service and service and campaign participation in the ETO the FSM is also eligible for the following awards that were omitted from his WD AGO Form 53-55:  World War II Victory Medal, ACM, PUC, MUC, AOM with Germany Clasp, French Croix de Guerre, and 1 silver service star to be worn with his EAME Campaign Medal.  Therefore, it would also be appropriate to add these awards to his WD AGO Form 53-55. 

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 amending item 33 of his WD AGO Form 53-55 by deleting the current list of awards and replacing it with the entry "Bronze Star Medal 2nd Oak Leaf Cluster and with "V" Device, Purple Heart, Army Good Conduct Medal, European-African-Middle Eastern Campaign Medal with 1 silver service star, American Defense Service Medal, American Campaign Medal, World War II Victory Medal, Army of Occupation Medal with Germany Clasp, Presidential Unit Citation, Meritorious Unit Commendation, French Croix de Guerre, and Combat Medical Badge"; and by providing the applicant a correction to the FSM’s WD AGO Form 53-55 that includes these changes. 




      _______ _XXX   _______   ___
               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)                                         AR20090002526



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ABCMR Record of Proceedings (cont)                                         AR20090002526



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