IN THE CASE OF:	  

		BOARD DATE:	        16 April 2009

		DOCKET NUMBER:  AR20090005297 


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 the records of his deceased father, a former service member (FSM), be corrected to show award of the Purple Heart, the POW Medal, the Combat Infantryman Badge, the American Defense Medal, the European-African-Middle Eastern Campaign Medal, and the World War II Victory Medal.

2.  The applicant states that the FSM's records were destroyed in the 1973 fire.  Anecdotal evidence from family members and letters agree with the evidence he provides in establishing that the FSM landed at Anzio Beach, was wounded, hospitalized, and later rejoined his unit.  He was again wounded and captured during the October 1944 push to Bologna, Italy.  After his capture, he was confined to Mantova Hospital, Italy, for treatment of his wounds and later transported to Moosburg, Germany, and held captive at the Stalag VIIA prison camp.  

3.  The applicant provides a copy of a Standard Form 180 (Request Pertaining to Military Records), dated 28 February 2009; a copy of a letter from the International Committee of the Red Cross, dated 3 February 2009; a copy of the FSM's National Archives Form 13038 (Certification of Military Service), dated 15 September 2003; a copy of the FSM’s WD Form 372A (Final Payment Worksheet), dated 7 November 1945; and a copy of the FSM's information retrieved from the National Archives and Records Administration (NARA), in support of his request.


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, including his WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge), are not available to the Board 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 for the Board to conduct a fair and impartial review of this case.

3.  The FSM's NA Form 13038 shows he was born on 28 June 1928 and entered military service on 10 September 1943.  This form also shows he attained the rank of private first class (PFC) and was honorably discharged on 7 November 1945.

4.  The FSM's WD Form 372A, dated 7 November 1945 shows that the FSM was paid combat infantryman pay at the rate of $2.33 for the period from 1 November 1945 through 7 November 1945.  This form also shows the reason and/or authority for the discharge as "CDD, Section 1 of Army Regulation 615-365 and Demobilization."

5.  The applicant submitted a letter, dated 3 February 2009, from the International Committee of the Red Cross that shows the FSM was captured on 26 October 1944 in Italy.  He was transferred as a POW to a prisoner of war camp in Germany called Stalag VIIA.  This letter further shows that the FSM was admitted in Stalag VIIA on 7 December 1944 coming from Mantova and that he was present at Stalag VIIA according to a capture card, dated 8 December 1944, and to a list, dated 5 January 1945.


6.  Mantova is a city in Lombardi, Italy, and capital of the province of the same name.  Stalag VIIA is one of many POW camps in Germany during World War II (WWII) and is located near the city of Moosburg in the Bayern province in today's Germany.

7.  There is no indication in the FSM's reconstructed records that he was wounded in action and/or treated for a wound or injury resulting from hostile action.

8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Prisoner of War Medal.  The regulation states that the Prisoner of War Medal was authorized on 8 November 1985 and is awarded to individuals who in past armed conflicts were taken prisoner or held captive.

9.  Army Regulation 635-5 (Separations Document) establishes the standardized policy for preparing and distributing discharge documents.  In pertinent part, it directs that, in the case of prisoners of war, the unit of assignment, country and dates of capture and release will be entered in the “Remarks” section of the discharge document.

10.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.

11.  Section 521a of the National Defense Authorization Act of 1996, authorized award of the Purple Heart to any former prisoner of war who was wounded before 25 April 1962 while held as a prisoner of war or while being taken captive, in the same manner as a former prisoner of war who was wounded on or after that date.  Section 521b specifically stated that award of the Purple Heart for prisoners of war under Section 521a shall be made in accordance with the standards in effect on the date of the enactment of this Act to persons wounded on or after 25 April 1962.

12.  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.  Additionally, World War II holders of the Combat Infantryman Badge 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:

    a.  Light machine gunner (604)			b.  Heavy machine gunner (605)
    c.  Platoon sergeant (651)				d.  Squad leader (653)
    e.  Rifleman (745)						f.  Automatic rifleman (746)
    g.  Heavy weapons NCO (812)			h.  Gun crewman (864)

13.  War Department Circular Number 408, Expert and Combat Infantryman Badges, Award, and Additional Pay, dated 17 October 1944 cited Public Law 393, 78th Congress, approved 30 June 1944 which provided that during the war and for 6 months thereafter any enlisted man of the combat ground forces of the Army who was entitled to wear the Expert Infantryman Badge or the Combat Infantryman Badge would be paid additional compensation at the rate of $5 per month when he was entitled to wear the Expert Infantryman Badge and at the rate of $10 per month when he was entitled to wear the CIB. 

14.  Army Regulation 600-8-22 provides for award of the Bronze Star Medal to members of the armed forces who, after 6 December 1941 and prior to 3 September 1945, have been cited in orders or in a formal certificate for meritorious or exemplary conduct in ground combat against the armed enemy.  A citation in orders for the Combat Infantryman Badge or Medical Badge awarded in the field during the period of actual combat against the armed enemy is considered as a citation for exemplary conduct in ground combat.  It also provides for the wear of one bronze service star on the appropriate campaign or service medal for each credited campaign.

15.  Army Regulation 600-8-22 (Military Awards), provides, in pertinent part, that the European-African-Middle Eastern Campaign Medal is awarded for service within the European African-Middle Eastern Theater between 7 December 1941 and 8 November 1945.  This medal is awarded to any service member who was permanently assigned in the theater, who was in a passenger status or on temporary duty for 30 consecutive days or 60 nonconsecutive days, or who was in active combat against the enemy and was awarded a combat decoration, or who was furnished a certificate by the commanding general of a corps or higher unit or independent force showing that he actually participated in combat.

16.  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.

17.  Army Regulation 600-8-22 provides, in pertinent part, for award of the American Defense Service Medal for service within the American Theater between 8 September 1939 and 7 December 1941 under orders to active duty for a period of 12 months or longer.

DISCUSSION AND CONCLUSIONS:

1.  The FSM's records, including his WD AGO Form 53-55 (Separation Document), are not available for review with this case.  Nevertheless, available records show that the FSM served in Europe during WWII and is entitled to document his period of service as well as his several awards and decoration.  Therefore, a DA Form 1569 (Transcript of Military Records) should be completed to record the following awards and decorations:

	a.  The evidence of record shows that the FSM was captured on 26 October 1944 in Italy and was transferred to a German POW camp on 7 December 1944. Although the date of his release is unknown, the evidence shows that he was present at the POW camp on 8 December 1944 and 5 January 1945.  Therefore, he is entitled to award of the POW Medal and correction of his records to show this award; 

	b.  The evidence of record shows that the FSM received compensation in the form of combat infantry pay from 1 November 1945 to 7 November 1945.  Therefore, he is entitled to award of the Combat Infantryman Badge and correction of his records to show this award.  Furthermore, he is also entitled to award of the Bronze Star Medal based on award of this Combat Infantryman Badge and correction of his records to show this award;

	c.  The evidence of record shows that the FSM was captured in Italy on 26 October 1944 and was transferred to Germany on 7 December 1944 where he remained until at least 5 January 1945.  Therefore, he served a qualifying period for award of the European-African-Middle Eastern Campaign Medal and is entitled to correction of his records to show this award; and

	d.  The evidence of record shows that the FSM served a qualifying period for award of the World War II Victory Medal and is entitled to correction of his records to show this award.

2.  With respect to award of the Purple Heart, there are no General Orders that show the FSM was awarded the Purple Heart and there is no evidence in his reconstructed records which shows that he was wounded or injured as a result of hostile action or treated for such wounds.  Although it is reasonable to presume the FSM may have been beaten by his captors and was possibly injured during captivity, regrettably, absent evidence which conclusively shows that the FSM sustained wounds or injuries as a result of hostile action, and that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is insufficient basis for awarding the Purple Heart to the applicant in this case.

3.  With respect to award of the American Defense Service Medal, this award is awarded for service within the American Theater between 8 September 1939 and 7 December 1941 under orders to active duty for a period of 12 months or longer. The evidence of record shows the FSM served from 10 September 1943 to 7 November 1945.  Therefore, he did not meet the criteria for award of the American Defense Service 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:

	a.  initiating a DA Form 1569 to document the FSM's period of service; and 

	b.  adding awards of the Bronze Star Medal, the Combat Infantryman Badge, the POW Medal, the World War II Victory Medal, and the European-African-Middle Eastern Campaign Medal to the DA Form 1569.
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 Purple Heart and the American Defense Service Medal.


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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)                                         AR20090005297



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ABCMR Record of Proceedings (cont)                                         AR20090005297



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