BOARD DATE:	  20 October 2009 

		DOCKET NUMBER:  AR20090008250 


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 Purple Heart (PH) be added to his record and that he be issued two bronze service stars.

2.  The applicant states, in effect, that he received and has in his possession the PH, which is not included in his record.  He further states that he never received the two bronze service stars.  He claims he was wounded and hospitalized from combat shrapnel injuries and still has shrapnel in his back and left leg.

3.  The applicant provides a WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge) in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the Board equitably review the applicant's case.

2.  Counsel states, in effect, that the issues raised by the applicant in his application advance his contentions and substantially reflect the probative facts needed for an equitable review.  Counsel's purpose in providing a statement is to aid the applicant in the proper resolution of any error or injustice raised.  Moreover, counsel rests assured the Board's final decision will reflect sound equitable principles consistent in law, regulation, policy, and discretions as set forth in the governing statutes.

3.  Counsel provides a statement in support of the 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 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 applicant'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 reconstructed records, which primarily consist of the applicant's WD AGO Form 53-55, WD Form 372A (Final Payment-Work Sheet) and Office of the Surgeon General (OTSG) Hospital Admission Record remaining in the NPRC file.
   
3.  The applicant's WD AGO Form 53-55 shows that he was inducted into the Army on 20 November 1943 and entered active duty on 11 December 1943.  It also shows that he served in the European theater of operations (ETO) from 12 August 1944 through 23 May 1946 and that he participated in the Rome-Arno and Northern Apennines campaigns of World War II.

4.  Item 31 (Military Qualifications and Date) of the FSM's separation document shows that he received the Combat Infantryman Badge (CIB).  Item 33 (Decorations and Citations) shows that during his active duty tenure, he earned the European-African-Middle Eastern (EAME) Campaign Medal with two bronze service stars, the Army Good Conduct Medal, and the World War II Victory Medal.  The PH is not included in the list of awards in item 33 and item 34 (Wounds Received in Action) contains the entry "none."

5.  The applicant's WD AGO Form 53-55 also shows that the applicant held the rank of private first class on the date of his separation and that this was the highest rank he attained while serving on active duty.  It also shows that he was honorably separated on 8 June 1946, after completing a total of 2 years, 5 months, and 28 days of active military service.
6.  There is one OTSG Hospital Admission Record in the applicant's NPRC file that shows he was admitted to a medical treatment facility in the ETO in October 1944 and was treated for astigmatism (blurry vision) and psychoneurosis (minor mental disorder).  This document gives no indication these conditions were received as a result of enemy action or were battle related.

7.  A WD Form 372A on file shows the applicant was receiving combat infantry pay at the time of his discharge.

8.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to award a PH there must be evidence that a member was wounded or injured as a result of enemy action, that the wound required treatment by military personnel, and a record of this treatment must have been made a matter of official record.  

9.  Paragraph 3-14 of Army Regulation 600-8-22 outlines the criteria for award of the Bronze Star Medal (BSM).  Paragraph 3-14d(2) states, in effect, that the BSM is authorized 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 CIB is considered as a citation in orders.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that received and is in possession of the PH and that this award should be added to his record was carefully considered.  However, by regulation, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that it required treatment by military medical personnel, and a record of this treatment must have been made a matter of official record.

2.  The applicant's NPRC file is void of any order or other documents that show he was ever wounded in action, treated for a combat-related wound by military medical personnel, or recommended for or awarded the PH by proper authority while serving on active duty.  Further, item 34 of his WD AGO Form 53-55 contains the entry "none" which indicates he was never wounded in action.


3.  In addition, while the NPRC file contains an OTSG Hospital Admission record that shows the applicant was admitted to a treatment facility in the ETO in October 1944, it appears he was treated for non-battle related illnesses.  There are no OTSG records on file that show he was ever treated for a combat-related wound.  As a result, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Therefore, it would not be appropriate or serve the interest of all those who served during World War II and who faced similar circumstances to award the applicant the PH at this late date.

4.  The evidence does show that based on his having received the CIB during World War II, the applicant is eligible to receive the BSM for his exemplary conduct in ground combat against an armed enemy while serving in the ETO from 12 August 1944 through 2 September 1945.  Therefore, it would be appropriate to award him the BSM and to add it to his WD AGO Form 53-55 at this time.  It would also be appropriate to issue the applicant the two bronze service stars he is authorized with his EAME Campaign Medal at this time.

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 awarding him the BSM for his exemplary conduct in ground combat against an armed enemy while serving in the ETO from 12 August 1944 through 2 September 1945; by adding the BSM to the list of awards contained in item 33 of his WD AGO Form 53-55; and by issuing him two bronze service stars for wear with his EAME Campaign Medal.

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 adding the PH to his record and 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)                                         AR20090008250



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ABCMR Record of Proceedings (cont)                                         AR20090008250



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