IN THE CASE OF:	

		BOARD DATE:	15 September 2009    

		DOCKET NUMBER:  AR20090005676 


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 award of the Purple Heart and the Germany Occupation Medal [Army of Occupation Medal with Germany Clasp].

2.  The applicant states he was granted a 50-percent disability rating for wounds he received in combat.  He states that the Board of Veterans' Appeals recently established compensation for his injury.  The applicant contends that his wound was caused by dropping a 94-pound 155-millimeter projectile on his hand during the Battle of the Bulge.  He applied for compensation after two surgeries and it took over 4 years of review and appearing before the Veterans' Court of Appeals.  The applicant indicates the period of eligibility for award of the Army of Occupation Medal with Germany Clasp is from 9 May 1945 to 5 May 1955 and he believes that the award may not have been authorized at the time of his separation.

3.  The applicant provides a letter from the Department of Veterans Affairs (DVA), dated 17 November 2008; his Honorable Discharge Certificate, dated 20 March 1946; his WD AGO Form 53-55 (Enlisted Record and Report of Separation); and his WD AGO Form 100 (Separation Qualification Record ) 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 records 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 applicant’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 applicant's WD AGO Form 53-55 shows he was inducted into the Army of the United States on 13 September 1943.  His WD AGO Form 100 shows he completed training as an ammunition handler.  His WD AGO Form 53-55 shows he served in the European African-Middle-Eastern theater during the period 30 September 1944 to 5 November 1946 [sic].

4.  The applicant was honorably discharged on 20 March 1946.  His WD AGO Form 53-55 shows he was awarded three overseas service bars, the European African Middle Eastern Campaign Medal with three bronze service stars, the World War II Victory Medal, the Army Good Conduct Medal, and the Expert Infantryman Badge.

5.  His WD AGO Form 53-55 shows the entry "None" in item 34 (Wounds Received in Action).  There is no evidence which indicates he sustained wounds as a result of hostile action.

6.  The applicant's reconstructed records contain a Morning Report of the Service Battery, 758th Field Artillery Battalion, dated 13 January 1945.  This report does not show the applicant was wounded as a result of hostile action.

7.  In a 17 November 2008 letter, the DVA informed the applicant that he was granted service connection for Dupuytren's contractures on his right, long, ring and little fingers (30 percent) and an overall combined rating of 50 percent.

8.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register), dated 6 July 1961, shows World War II units that are authorized occupation credit and, therefore, entitlement to the Army of Occupation Medal.  This pamphlet shows that Service Battery, 758th Field Artillery Battalion, received credit for occupation duty for Germany during the period 2 May 1945 to 14 August 1945.

9.  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.  This regulation states that when contemplating award of the Purple Heart, the key issue that commanders must take into consideration is the degree in which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not the sole justification for award.  It further states that injuries or wounds which clearly do not justify award of the Purple Heart include accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

10.  Army Regulation 600-8-22 provides, in pertinent part, that the Army of Occupation Medal is awarded for service of 30 consecutive days at a normal post of duty in a qualifying location.  Personnel at a qualifying location as an inspector, courier, and escort on temporary or detached duty are precluded from eligibility.  For award of the Army of Occupation Medal with Germany Clasp, qualifying service must have occurred between 9 May 1945 and 5 May 1955 and the European-African-Middle Eastern Campaign Medal must have been awarded prior to 9 May 1945.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his wound was caused by dropping a 94-pound 155-millimeter projectile on his hand during the Battle of the Bulge.

2.  By regulation, in order to award the Purple Heart it is necessary to establish that a Soldier was wounded in action, that the wound required treatment by medical personnel, and the treatment record must have been made a matter of official record.

3.  However, there are no medical documents which indicate the applicant was wounded as a result of hostile action during World War II.  In addition, his WD AGO Form 53-55 and the Morning Report do not reflect he received any wounds in action.  Therefore, there is insufficient evidence on which to base award of the Purple Heart in this case.

4.  Department of the Army Pamphlet 672-1 shows that Service Battery, 758th Field Artillery Battalion, received occupation credit for Germany during the applicant's assignment.  Therefore, he is entitled to award of the Army of Occupation Medal with Germany Clasp and correction of his records to show this award.

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 showing award of the Army of Occupation Medal with Germany Clasp.

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.



      __________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)                                         AR20090005676



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090005676



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1