IN THE CASE OF:	  

		BOARD DATE:	       9 JULY 2009

		DOCKET NUMBER:  AR20090008431 


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 that he be awarded the Purple Heart.  In an amendment to his application, the applicant also requested that he be awarded the Prisoner of War Medal.

2.  The applicant states, in effect, that supporting documents show evidence to support his entitlement to the Purple Heart.  He adds that he is an ex-prisoner of war who sustained an injury that caused bleeding, he had frozen feet, and he saved other Soldiers' lives.  His family has an interest in his being awarded the Purple Heart.

3.  In support of his application, the applicant submitted a copy of his WD AGO 
Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge); a copy of his Army of the United States Honorable Discharge Certificate, dated 11 October 1945; a statement authored by the applicant's three daughters; a copy of a letter addressed to the applicant's mother from The Adjutant General's Office, Washington, DC, dated 27 April 1945; a newspaper article which reported that the applicant had been reported missing on 8 April 1945 and had escaped from his German captors; a copy of a VA Form 21-526 (Veteran's Application for Compensation or Pension), receipted for in the Department of Veterans Affairs (VA) Regional Office Mail Room on 25 August 1987; a copy of a Standard Form 513 (Medical Record - Consultation Sheet), dated 25 November 1987; a copy of a Standard Form 504 (Clinical Record - History-Part I), dated 9 December 1987; a copy of a Standard Form 513, dated 9 December 1987; a copy of a Medical Record - Defined Data Base - Physical Examination Record, completed at the VA Medical Center (VAMC), Waco, Texas, on 9 December 1987; a copy of a letter from the Manax Medical and Surgical Center, West, Texas, dated 10 February 1998; a copy of a VA Form 21-4138 (Statement in Support of Claim), dated 13 March 1998; a copy of a Compensation and Pension Exam Report, prepared at the VAMC in Temple, Texas, on 23 April 1998; five pages of a Compensation and Pension Exam Report, prepared at the VAMC in Temple, Texas, on 14 December 2004; a copy of a Rating Decision made by the VA Regional Office, Waco, Texas, on 10 January 2005; and a copy of a statement from the applicant's physician, dated 25 June 2008.

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 were damaged by fire at the National Personnel Records Center in 1973.  Information herein was obtained from documentation submitted by the applicant, from information on file in the applicant's reconstructed record and what remains of his burned records, and from other official Army sources.

3.  The evidence shows the applicant was inducted into the Army of the United States on 15 March 1941 and entered service at Fort Sam Houston, Texas, on the same date.  The applicant was honorably discharged in the rank of private first class on 11 October 1945 for the convenience of the government at demobilization.  While in the Army, the applicant served in the Infantry in military occupational specialty 745 (Rifleman).

4.  Item 6 (Organization) of the applicant's WD AGO Form 53-55 shows he was assigned to the Reconnaissance Company of the 702nd Tank Destroyer Battalion on the date of his discharge; however, the applicant's records show he was assigned to Headquarters and Headquarters Company, 2d Battalion, 41st Armored Infantry Regiment of the 2nd Armored Division from 1942 to 14 April 1945.  He was assigned to Service Company of the 41st Armored Infantry Regiment when he returned to his unit on 14 April 1945 after having been held captive by German military forces.  He remained assigned to this unit until 1 August 1945 when he was assigned to the 702nd Tank Destroyer Battalion.

5.  Item 31 (Military Qualification and Date) of the applicant's WD AGO 
Form 53-55 shows he was awarded the Combat Infantryman Badge on 17 September 1944.  At the time the applicant was awarded the Combat Infantryman Badge, he was a member of the 41st Armored Infantry Regiment.

6.  An entry in the applicant's service record shows he qualified as Sharpshooter with the M-1 rifle on 2 February 1942.  This marksmanship qualification badge was not shown in item 31 of the applicant WD AGO Form 53-55.

7.  Item 32 (Battles and Campaigns) of the applicant's WD AGO Form 53-55 shows that he was awarded credit for participating in the Sicily, Normandy, Northern France, Ardennes, Rhineland, and Central Europe campaigns of World War II.

8.  Item 33 (Decorations and Citations) of the applicant's WD AGO Form 53-55 shows he was awarded the European-African-Middle Eastern Campaign Medal with six bronze service stars and one bronze arrowhead device, the Army Good Conduct Medal, and the American Defense Service Medal.  

9.  Item 34 (Wounds Received in Action) of the applicant's WD AGO Form 53-55 shows the entry, "None."

10.  There are no documents in the applicant's available service personnel record showing he sustained an injury or that he was wounded as a result of hostile enemy action.  The applicant did not submit any medical documents that were created at the time he was injured by the blast of the enemy mine and he allegedly received medical treatment.  The earliest dated document the applicant submitted that includes testimony about his being wounded or injured in action is dated 25 August 1987 and entries are not supported by medical documentary evidence that was made at the time he was wounded or injured.

11.  On 25 August 1987, the applicant made application to the VA for service-connected compensation and benefits.  In his application, the applicant reported he had been a prisoner of war for approximately 1 1/2 weeks.  The applicant also reported he suffered from having had frozen feet in late 1944, had suffered gastrointestinal disorders in 1944, and had suffered a concussion and lacerations to the upper lip from a mine explosion.  In the VA Form 21-526 he completed at the time, he indicated he had received medical treatment at the aid station and at field hospitals.
12.  In Part IV - Military History, of a Standard Form 513, which was prepared as part of prisoner of war protocol on 25 November 1987, the applicant was quoted as having said his job was to haul food rations on a daily basis to the front-line troops.  At times he was shot at by snipers and on one occasion his truck ran over a land mine, but he escaped serious injury.

13.  The following entries appear in the History of Present Illness section of a Standard Form 504 that was prepared from an interview with the applicant on 9 December 1987:  "Problem #1 - frozen feet - exposure to the cold in 1944 in Belgium.  He admitted he did not get any medical treatment.  Caused his toenails to become loose.  Problem #3 - residuals of concussion - due to mine explosion in 1944.  No complaints now.  Problem #4 - laceration - upper lip from land mine in 1944 - laceration healed well.  No complaints."

14.  On 10 February 1998, the applicant was examined by a physician on staff at the Manax Medical and Surgical Center, West, Texas.  Following this examination, the physician reported that the applicant had been in active combat and had sustained a blast injury to his face and injured, in particular, the gingival process.  Indeed, the injury to the upper anterior gingival is still readily identifiable.  This injury, the physician opined, contributes to ill-fitting dentures and may also be a pre-disposing factor to his chronic sinusitis with frequent acute exacerbations.

15.  On 13 March 1998, the applicant completed a VA Form 21-4138.  In this form he stated, in effect, that he was claiming service connection for his mouth injuries.  His mouth was injured during combat.  A mine blew up and caused damage to his upper mouth.  He was bleeding.  This occurred while he was throwing C-Rations out of the back of the truck to troops.  When the explosion occurred, the hubs were blown off the truck.  Also, after this accident his ears started ringing.  On the date of his examination, he still had the ringing in his ears.

16.  On 23 April 1998, the applicant was examined for what appears to have been an increase in service-connected compensation.  A copy of a rating decision dated prior to the rating decision dated 10 January 2005 is not available for the Board's review.

17.  On 10 January 2005, the VA granted the applicant service connection for bilateral hearing loss with an evaluation of 30 percent and for tinnitus with an evaluation of 10 percent based on a new claim he had filed on 25 October 2004.  According to the VA, the applicant's service medical records for the period from 15 March 1941 through 11 October 1945 were used as evidence in arriving at the rating decision.  The VA added in their rating decision that they had granted service connection with his bilateral hearing loss and with his tinnitus because, although his service medical records did not show any complaints or diagnosis of hearing loss or tinnitus during his military service, the medical examiner at his VA audio examination stated it was likely that some degree of his current hearing loss and tinnitus were due to severe traumatic noise exposure that he experienced as a rifleman and during combat in the military.  None of the service medical records that were available to the VA in arriving at their rating decision were provided to the Board for its review by the applicant.

18.  The applicant's file is absent any copies of Office of the Surgeon General Hospital Admission Records which might have shown he was treated or hospitalized to receive treatment for frozen feet, concussion, lacerations, or any other wound or injury while he served in Europe during World War II.

19.  Item 36 (Service Outside Continental U.S. and Return) of the applicant's WD AGO Form 53-55 shows the applicant departed the United States on 12 December 1942 en route to the European-African-Middle Eastern theater of operations and returned to the United States on 3 October 1945.

20.  Item 55 (Remarks) of the applicant's WD AGO Form 53-55 shows that the applicant was issued the Honorable Service Lapel Button, World War II.

21.  On 27 April 1945, The Adjutant General, Washington, DC, informed the applicant's mother he had been reported missing in action in Germany since 8 April 1945.

22.  A Battle Casualty Report on file in the applicant's burned, reconstructed records show he was reported as a casualty after having been captured in Germany on 8 April 1945.

23.  On 1 May 1945, a Battle Casualty Report was received in the Office of the Adjutant General showing the applicant had been returned to duty as of 14 April 1945.  A copy of this report is on file in the applicant's service record.

24.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) shows that the applicant's unit (2nd Battalion, 41st Infantry Regiment only) was awarded the Presidential Unit Citation for the period 17 November 1944 through 28 November 1944 by WD Orders Number 108-45.  This unit award is not shown on the applicant's WD AGO Form 53-55.

25.  Department of the Army Pamphlet 672-1 also shows that the applicant's unit (2nd Battalion, 41st Infantry Regiment) was awarded the French Croix de Guerre for the period 14 November 1944 through 28 November 1944 by Department of the Army General Orders (DAGO) Number 43-50.  This foreign unit award is not shown on the applicant's WD AGO Form 53-55.

26.  Army Regulation 600-8-22 (Military Awards) provides for award of the French Fourragere.  The regulation states that the French Government may award it when a unit has been cited twice for the Croix de Guerre.  The award of the French Fourragere is not automatic, but requires a specific decree of the French Government.  Persons who were present in only one action are not authorized to wear the Fourragere.  The evidence shows the applicant's unit was cited for only one award of the French Croix de Guerre.

27.  Department of the Army Pamphlet 672-1 further shows that the applicant's unit (41st Infantry Regiment) was awarded the Belgian Fourragere for the period 2 September 1944 and for the period 21 December 1944 through 28 December 1944 by DAGO Number 43-50.  This foreign unit award is not shown on the applicant's WD AGO Form 53-55 despite the fact an entry appears on a WD AGO Form 24-3 (Service Record) on file in the applicant's service record.  The original authority for this award to the applicant's unit was a telegram to the European theater of operations, U.S. Army Main, dated 8 June 1945.

28.  Army Regulation 600-8-22 provides for award of the Belgian Fourragere.  This regulation states that it may be awarded by the Belgian Government when a unit has been cited twice in the Order of the Day of the Belgian Army.  The award of the Belgian Fourragere is not automatic but must be by special decree of the Belgian Government.  Persons who were present in only one action are not authorized to wear the Fourragere.

29.  In a 28 March 1983 letter, the U.S. Army Military Personnel Center [now the U.S. Army Human Resources Command] published the policy regarding award of the French Croix de Guerre to U.S. Army veterans who served in World War I and World War II.  Essentially, this guidance states that there is no individual emblem presented to or worn by Army Soldiers who were in a unit cited by the French Government for award of the Croix de Guerre.  Thus, former members of any American units which appear in Department of the Army Pamphlet 672-1 are not authorized an individual device.  This is also true of the Belgian Citation in the Order of the Day and the Netherlands Military Order of William.  As a result, the only European foreign unit awards which a former Army service member may wear are the French Fourragere, the Belgian Fourragere, and the Netherlands Orange Lanyard.

30.  Department of the Army Pamphlet 672-1 further shows that the applicant's unit (41st Infantry Regiment) was awarded credit for the occupation of Germany for the period 2 May 1945 through 29 September 1945.  The Army of Occupation Medal with Germany Clasp is not shown on the applicant's WD AGO Form 53-55.

31.  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.

32.  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.

33.  Army Regulation 600-8-22 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, and the medical treatment must have been made a matter of official record.  

34.  Army Regulation 600-8-22 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.

35.  Army Regulation 600-8-22 provides, in pertinent part, that the Bronze Star Medal is awarded for heroism and for meritorious achievement or service in military operations against an armed enemy.  The Bronze Star Medal is authorized for each individual who was cited in orders or awarded a certificate for exemplary conduct in ground combat between 7 December 1941 and 2 September 1945 or whose achievement or service during that period was confirmed by documents executed prior to 1 July 1947.  An award of the Combat Infantryman Badge or the Combat Medical Badge is considered to be a citation in orders.  Therefore, the Bronze Star Medal is to be awarded to individuals who were authorized either badge for service during World War II.

DISCUSSION AND CONCLUSIONS:

1.  To be awarded the Purple Heart, substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

2.  The evidence in this case shows the entry, "None," was made in item 34 of the applicant's WD AGO Form 53-55 at the time he was undergoing processing for discharge.

3.  The applicant submitted medically-related documents he indicates his entitlement to award of the Purple Heart; however, the applicant did not submit any medical documents that were created at the time he was injured by the blast of the enemy mine and for which he allegedly received medical treatment.  While the applicant's veracity is not being questioned, there are no documents in the applicant's available service personnel record showing he sustained an injury or that he was wounded as a result of hostile enemy action.

4.  The earliest dated document the applicant submitted that includes testimony about his being wounded or injured in action is dated 25 August 1987, and the entries are not supported by medical documentary evidence that was made at the time he was wounded or injured.  Medical personnel who have examined him and provided statements in support of his award of the Purple Heart were not present when the applicant was allegedly wounded or injured as a result of enemy action and have relied only on what the applicant has conveyed to them verbally when being diagnosed.

5.  When the applicant was granted service-connected compensation for bilateral hearing loss and tinnitus, the VA added in their rating decision that they had granted service connection even though his service medical records did not show any complaints or diagnosis of hearing loss or tinnitus during his military service.  The medical examiner at his VA audio examination stated it was likely that some degree of the applicant's hearing loss and tinnitus were due to severe traumatic noise exposure that he experienced as a rifleman during combat in the military.  None of the service medical records that were apparently available to the VA in arriving at their rating decision were provided to the Board for its review by the applicant.

6.  Based on a lack of documents that were prepared contemporaneously at the time of the applicant's World War II service and based on the available evidence, the applicant is therefore not entitled to award of the Purple Heart and to have it added to his WD AGO Form 53-55.

7.  The evidence shows the applicant was awarded the Combat Infantryman Badge during World War II.  He is therefore entitled to award of the Bronze Star Medal based on the special provisions of the awards regulation that considers award of the Combat Infantryman Badge a citation in orders.  Therefore, it would be appropriate to award the applicant the Bronze Star Medal and to add it to his WD AGO Form 53-55 at this time.

8.  The evidence shows the applicant was reported as missing in action due to having been captured by German military forces.  The evidence further shows that he was a captive for 6 days when he escaped from his captors on 14 April 1944 and returned to his unit.  Because the Prisoner of War Medal was not authorized for award to those who were taken prisoner or held captive in past armed conflicts until 8 November 1985, he is entitled to award of the Prisoner of War Medal and to have it added to his WD AGO Form 53-55.

9.  The evidence shows the applicant was assigned to a unit at the time it was awarded credit for the occupation of Germany.  He is therefore entitled to award of the Army of Occupation Medal with Germany Clasp and to have it added to his WD AGO Form 53-55.

10.  The applicant served on active duty as a member of the Army of the United States during the qualifying period for award of the World War II Victory Medal.  He is therefore entitled to award of the World War II Victory Medal and to have it added to his WD AGO Form 53-55.

11.  The applicant's unit was awarded the Presidential Unit Citation while he was a member of the unit.  He is therefore entitled to this unit award and to have it added to his WD AGO Form 53-55.

12.  The applicant’s unit received the French Croix de Guerre once while he was assigned to the unit.  The applicant is therefore entitled to correction of his WD AGO Form 53-55 to show the entry, "French Croix de Guerre - Unit Citation - No Emblem Authorized."

13.  The applicant's unit was twice awarded the Belgian Fourragere while he was a member of the unit.  He is therefore entitled to this foreign unit award and to have it added to his WD AGO Form 53-55.

14.  The applicant qualified and was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-1).  This marksmanship qualification badge is not shown on his WD AGO Form 53-55.  It would be appropriate to add this badge to his WD AGO Form 53-55 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:

	a.  awarding the applicant the Bronze Star Medal, the Prisoner of War Medal, and the Army of Occupation Medal with Germany Clasp and adding these awards to his WD AGO Form 53-55;

	b.  adding the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-1) to the applicant's WD AGO Form 53-55; and

	c.  adding the Presidential Unit Citation, the French Croix de Guerre - Unit Citation - No Emblem Authorized, and the Belgian Fourragere to the applicant's WD AGO Form 53-55.

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 to the applicant and its addition to his 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)                                         AR20090008431



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