IN THE CASE OF:	  

		BOARD DATE:	  17 September 2009

		DOCKET NUMBER:  AR20090005753 


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, the son of the deceased former service member (FSM) requests, in effect, correction of the FSM’s WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) by adding the following: in Item 32 (Battles and Campaigns) the European, African, Middle-Eastern campaign; in Item 33 (Decorations and Citations) the Purple Heart and a fourth bronze service star; and in Item 34 (Wounds Received in Action) “severe concussion and hearing loss.”  

2.  The applicant states that these corrections should be made in the interest of justice.  The FSM demonstrated his courage, honor and faithful service during four battle campaigns.  He also suffered a 60 percent hearing loss for our country during World War II to rid the world of tyranny.

3.  The applicant provides, in support of his application, the following documents:

   a.  a letter from the National Archives and Records Administration, dated 
2 May 2008;
   
   b.  the FSM's WD AGO Form 53-55;
   
   c.  General Orders Number 1, 127th Antiaircraft Artillery (AAA) Gun Battalion, dated 24 January 1945;
   
   d.  a letter from a member of the FSM's unit, dated 9 May 2008;
   
   e.  a Commendation Letter from the 30th AAA Group, dated 21 November 1944;
   
   f.  an email communication, dated 9 April 2008;
   
   g.  a letter from the Department of Veterans Affairs (VA), dated 5 June 2008;
   
   h.  the FSM's death certificate;
   
   i.  a copy of a power of attorney;
   
   j.  the applicant's birth certificate; and
   
   k.  the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  

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 WD AGO Form 53-55 shows:

   a.  that on 16 November 1942, he was inducted into the Army of the United States and entered active duty on 30 November 1942;
   
   b.  that the FSM participated in the Ardennes-Alsace, Central Europe and Rhineland campaigns;

	c.  that his awards include the Good Conduct Medal and the European-African-Middle Eastern Theater Ribbon with three bronze service stars. 

	d.  that the FSM departed the United States on 1 July 1944 for duty in the European Theater of Operations (ETO) and served with the 127th AAA Gun Battalion;

	e.  that the FSM returned to the United States on 24 April 1945; 

   f.  that the FSM was not wounded in action;
   
   g.  that the FSM was honorably discharged on 8 October 1945 and issued a "Certificate of Disability for Discharge". 

3.  Information from hospital admission cards for the year 1945, as provided by the Office of the Surgeon General show the FSM was admitted to the hospital on 
2 January 1945 for medical treatment due to hearing loss caused by disease.

4.  Medical records dated 4 October 1945, stated that the FSM was exposed to American anti-aircraft fire as a gunner in England in July 1944.  He began noting severe tinnitus, temporary at first and later permanent.  Hearing loss was noted at that time.  The hearing loss was slowly progressive.  He was removed from gunner duty in December 1944 and the tinnitus ceased in his right ear and hearing improved to normal.  There was no improvement in his left ear.  He was returned to the United States on 24 April 1945 as a patient because of hearing loss and battle fatigue.   

5.  The FSM's Certificate of Disability for Discharge, dated 5 October 1945, stated that the FSM suffered from a state of chronic anxiety manifested by increased emotional tension, anxiety, restlessness, repeated battle dreams with startled reaction, mild predisposition and severe stress from 5 months in combat as an AAA gunner in the ETO in 1944.  

6.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against the enemy or as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action.  A wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions listed above.  A physical lesion is not required, however, the wound for which the award is made must have required treatment by medical personnel and records of medical treatment or wounds or injuries received in action must have been made a matter of official record.



7.  Army Regulation 600-8-22 provides, in pertinent part, for award of the American Campaign Medal.  This campaign medal is awarded for qualifying service in the American Theater between 7 December 1941 and 2 March 1946.  Qualifying service for this campaign medal includes permanent assignment outside the continental United States but within the American Theater of Operations, duty as a crewmember aboard a vessel sailing ocean waters for 
30 consecutive or 60 nonconsecutive days, or duty outside the continental United States as a passenger or in a temporary duty status for 30 consecutive or 
60 nonconsecutive days, or active combat against the enemy and was awarded a combat decoration or furnished a certificate by a corps commander or higher, or service within the continental United States for an aggregate period of 1 year.

8.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving during World War II.  This publication shows that the 127th AAA Gun Battalion, during the time of the applicant's assignment participated in the following four campaigns:  the Ardennes-Alsace, Central Europe, European-African, Middle-Eastern, and the Rhineland.  

9.  Army Regulation 600-8-22 (Military Awards) 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM's WD AGO Form 53-55 should be corrected to show he was wounded in action and awarded the Purple Heart and a fourth bronze service star for participation in the European, African, Middle-Eastern campaign.  

2.  The available evidence shows that the FSM suffered from tinnitus and hearing loss due to exposure to loud gunfire while engaging the enemy.  He received medical treatment for his injury.  Therefore, the FSM’s WD AGO Form 53-55 should be corrected to show award of the Purple Heart.

3.  Records show the FSM participated in the ETO during four campaign periods.  Therefore, he is entitled to award of four bronze service stars to be affixed to his already-awarded European, African, Middle Eastern Service Medal.

4.  Records show the FSM also served during a qualifying period for award of the American Campaign Medal and the World War II Victory Medal.  Therefore, his records should be corrected to show these awards.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board unanimously determined during their review that the available 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.  adding in Item 32 of the FSM's WD AGO Form 53-55 the “European, African, Middle-Eastern” campaign;

	b.  deleting from Item 33 of the FSM's WD AGO Form 53-55: ETO Ribbon  
3 Bronze Service Stars; and

	c.  adding in Item 33 of the FSM's WD AGO Form 53-55 the American Campaign Medal, European, African, Middle Eastern Service Medal with four bronze service stars, World War II Victory Medal.

2.  However, notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  There is no evidence that the applicant's injury was sustained as a result of hostile action perpetrated by the enemy.  The injury is consistent with the anticipated hazards of the applicant's MOS.  As a result, the Board recommends denial of so much of the application that pertains to award of the Purple Heart and correction of item 34 of his WD AGO Form 53-55 to show he was wounded in action.



      _______ _   _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)                                         AR20090005753



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ABCMR Record of Proceedings (cont)                                         AR20090005753



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