IN THE CASE OF:	  

		BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090008469 


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 the records of his deceased father, a former service member (FSM), be corrected to show award of the Silver Star and all other authorized awards and decorations.

2.  The applicant states the FSM's amended separation document shows a more complete history of his military service and this document should be included in the FSM's military service records.  He also states that prior to his father's death, the Veterans Administration was in the process of reviewing the FSM's military records to award him the Silver Star based on the FSM having been awarded the Bronze Star Medal, Purple Heart, two bronze service stars, and his other awards and decorations.

3.  The applicant provides copies of his birth certificate and his father’s and mother’s death certificates that serve to establish the applicant's eligibility to submit the application.  He also provides the FSM's amended WD AGO Form
53-55 (Enlisted Record and Report of Separation - Honorable Discharge) and a National Personnel Records Center (NPRC), Military Personnel Records, St. Louis, MO, letter, dated 16 April 2009.

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 service records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the NPRC in 1973.  It is believed that the FSM's records were lost or destroyed in that fire.  However, the FSM's partially burned original WD AGO Form 53-55 and the amended WD AGO Form 53-55 provide sufficient documentary evidence for the Board to conduct a fair and impartial review of this case.

3.  The FSM's WD AGO Form 53-55 shows he was inducted into the Army of the United States (AUS) in January 1944, entered into active service on 9 February 1944, and he was honorably discharged on 1 March 1945.  This WD AGO 
Form 53-55 also shows the following:

   a.  Item 4 (Arm or Service) shows he served in the Infantry and Item 6 (Organization) shows he was assigned to Company I, 36th Armored Infantry.

	b.  Item 30 (Military Qualification Specialty and Number) shows the entry "[indecipherable] 745."

   c.  Item 31 (Military Qualification and Date (i.e., infantry, aviation and marksmanship badges, etc.)) shows the entry "Ex Rifle" [i.e., Expert Marksmanship Qualification Badge with Rifle Bar].

   d.  Item 32 (Battles and Campaigns) contains no entry.
   
   e.  Item 33 (Decorations and Citations) shows the FSM was awarded the "[indecipherable] Middle Eastern Theater Ribbon WDC 62 44" [i.e., European-African-Middle Eastern Campaign Medal per War Department Circular 62, 1944].
   
   f.  Item 34 (Wounds Received in Action) is not intact, the left portion of this item has been burned or torn off.

   g.  Item 36 (Service Outside Continental U.S. and Return) shows the FSM departed the United States on 17 August 1944, arrived in the European Theater of Operations (ETO) on 25 August 1944, departed the ETO on 14 February 1945, and arrived in the United States on 25 February 1945.
   h.  His original WD AGO Form 53-55 shows the FSM completed 6 months and 9 days of foreign service and 1 year, 1 month, and 13 days longevity for pay purposes.  The portion of the document showing the FSM's continental service is missing.

   i.  Item 55 (Remarks) shows the Army Lapel Button was issued to the FSM and that he had inactive service in the Enlisted Reserve Corps from
19 January to 8 February 1944.

4.  In support of his application, the applicant provides a copy of the FSM's amended WD AGO Form 53-55 that shows the FSM was inducted into the AUS on 19 January 1944, entered into active service on 9 February 1944, and he was honorably discharged on 1 March 1945.  It also shows the following:

   a.  Items 4, 6, and 36 show the same entries as those shown on the original WD AGO Form 53-55, as described in paragraph 3 (above).

	b.  Item 30 shows the entry "Rifleman 745."

   c.  Item 31 shows the entry "Expert Rifleman combat Infantryman Badge."

   d.  Item 32 shows the entry "Rhineland  Ardennes-Alsace."
   
   e.  Item 33 shows the FSM was awarded two bronze service stars, the Purple Heart, Bronze Star Medal, World War II Victory Medal, Good Conduct Medal, and European-African-Middle Eastern Campaign Medal.

   f.  Item 34 shows the entry "5 Nov 44 EAME [European-African-Middle Eastern] Theater."

   g.  This document shows the FSM completed 6 months and 14 days of continental service; 6 months and 9 days of foreign service; and 1 year, 1 month, and 13 days longevity for pay purposes.

   h.  In addition to the same entries as described in paragraph 3, Item 55 shows the entry, "14 Feb 50 Items initiated by me have been amended to conform to official records.  Adjutant General." 

5.  An NPRC, Military Personnel Records, St. Louis, MO, letter, dated 16 April 2009, shows an archive technician confirmed the FSM was authorized the European-African-Middle Eastern Campaign Medal, World War II Victory Medal, Expert Marksmanship Qualification Badge with Rifle Bar, and Honorable Service Lapel Button (World War II).  This document also shows the FSM was informed "[a]lternate records fail to provide all entitlements of medals and decorations."

6.  There is no evidence in the FSM's available military service records that shows the FSM was recommended for award of the Silver Star or that he was awarded the Silver Star.

7.  A U.S. Army, Surgeon General's Office, Hospitalization Listing for 1944, shows the FSM was wounded in action due to the effects of discharge of a bazooka in November 1944.  This document also shows the FSM was treated at a Unit Aid Station and returned to duty.

8.  War Department Circular, Number 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.

9.  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.  The Military Awards Branch of the U.S. Army Human Resources Command has advised in similar cases that, during World War II, the Combat Infantryman Badge was normally awarded only to enlisted Soldiers who served in the following positions:  light machine gunner (604), heavy machine gunner (605), platoon sergeant (651), squad leader (653), rifleman (745), automatic rifleman (746), heavy weapons noncommissioned officer (812), and gun crewman (864).

10.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations:

   a.  This regulation provides that the Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

   b.  This regulation provides 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.  This means, in effect, that the Bronze Star Medal is to be awarded to individuals who were authorized either badge for service during World War II.

   c.  This regulation provides that the Purple Heart is awarded to any member who has been wounded or killed in action as a result of hostile action.  In order to support awarding a member the Purple Heart, it is necessary to establish that the wound for which the award is being made required treatment by medical personnel, and the medical treatment for the wound or injury received in action must have been made a matter of official record.

   d.  This regulation provides that the Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service.  The regulation states that, after 27 August 1940, three years of qualifying service was required for award of the Good Conduct Medal, but during the World War II era, the first award could be made based on one year of qualifying service provided that service occurred between 7 December 1941 and 2 March 1946.  

   e.  This regulation authorizes award of the European-African-Middle Eastern Campaign Medal for qualifying service in the European-African-Middle Eastern Theater of Operations for the period 7 December 1941 to 8 November 1945.  This regulation also authorizes a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation or listed in item 32 (Battles and Campaigns) of the WD AGO Form 53-55.  This regulation states that authorized bronze service stars will be worn on the appropriate campaign or service medal, including the European-African-Middle Eastern Campaign Medal.  

   f.  This regulation provides 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 the FSM's records should be corrected to show all of his awards and decorations, including the Silver Star based on the FSM's authorized awards and decorations.

2.  The evidence of record shows the FSM was issued a WD AGO Form 53-55 upon his discharge from the AUS on 1 March 1945.  The evidence of record also indicates the FSM was issued an amended WD AGO Form 53-55 by the Adjutant General on 14 February 1950.  A comparative review of these two documents shows the FSM served as an infantryman in an infantry company during World War II, he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar, and the amended WD AGO Form 53-55 shows award of the Combat Infantryman Badge.  In addition, a thorough review of the evidence of record shows the FSM met the strict criteria for award of the Combat Infantryman Badge (i.e., he was an infantryman serving with an infantry unit, satisfactorily performing duty, when he was wounded in action against the enemy).  Thus, it is reasonable to conclude that the FSM was awarded the Combat Infantryman Badge that is shown on the FSM's amended WD AGO Form 53-55.

3.  The FSM's amended WD AGO Form 53-55 shows award of the Bronze Star Medal.

   a.  There are no orders that show the FSM was awarded the Bronze Star Medal for heroism or for meritorious achievement or service.  Therefore, it cannot be determined from the available evidence the basis for the Bronze Star Medal that is shown on the FSM’s amended WD AGO Form 53-55. 

   b.  The governing regulation states that an award of the Combat Infantryman Badge is considered to be a citation in orders.  This means, in effect, that the Bronze Star Medal is to be awarded to individuals who were authorized the Combat Infantryman Badge for service during World War II.

	c.  The amended WD AGO Form 53-55 is dated 14 February 1950, which was subsequent to the regulatory guidance that authorized the Bronze Star Medal for an individual who was cited in orders or awarded a certificate for exemplary conduct in ground combat between 7 December 1941 and 2 September 1945.  Thus, it is reasonable to conclude that the FSM’s award of the Bronze Star Medal was based on his award of the Combat Infantryman Badge.  Therefore, in this instance, the evidence of record supports the FSM’s award of the Bronze Star Medal.

4.  Records show the FSM was wounded in action in the ETO in November 1944.  The evidence of record also shows the FSM's amended WD AGO Form 53-55 shows he was wounded in action on 5 November 1944 in the ETO and that he was awarded the Purple Heart.

5.  Records show the FSM served a qualifying period of active duty enlisted service for award of the Good Conduct Medal from 9 February 1944 through
1 March 1945.  The evidence of record also shows the FSM's amended
WD AGO Form 53-55 shows award of the Good Conduct Medal.
6.  Records show the FSM qualified for award of the European-African-Middle Eastern Campaign Medal and he participated in two campaigns in the ETO.  The FSM's amended WD AGO Form 53-55 shows he participated in two campaigns.  This document also shows two separate entries in item 33 (i.e., "2 Bronze Service Stars" and "European African Middle Eastern Theaters Ribbon WDC 62 44"), which does not correctly represent the authorized entry for the FSM's award.  Therefore, it would be appropriate to correct the FSM's amended WD AGO Form 53-55 to show he was awarded the European-African-Middle Eastern Campaign Medal with two bronze service stars.

7.  Records show the FSM's service qualifies him for award of the World War II Victory Medal.  The evidence of record also shows the FSM's amended WD AGO Form 53-55 shows award of the World War II Victory Medal.

8.  There is no evidence that the FSM was awarded the Silver Star or that he was recommended for award of the Silver Star.  There is no provision in the Army awards regulation that authorizes a higher level personal decoration based on an individual having received other awards and decorations.  Therefore, there is insufficient evidence to support correction of the FSM's records to show award of the Silver Star.

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.  deleting from item 33 of the FSM's amended WD AGO Form 53-55 the entries "2 Bronze Service Stars" and "European African Middle Eastern Theater Ribbon WDC 62 44"; and

     b.  adding to item 33 of the FSM's amended WD AGO Form 53-55 the "European-African-Middle Eastern Campaign Medal with two bronze service stars."

	c.  incorporating the 1 March 1945 WD ADO Form 53-55 that was amended by The Adjutant General on 14 February 1950 into the FSM's military service records documenting that he:

       (1)  served in the Rhineland and Ardennes-Alsace campaigns thereby authorizing two bronze service stars to be affixed to the FSM's service medal;

	    (2)  was wounded in action in the ETO on 5 November 1944; and

       (3)  was awarded the Combat Infantryman Badge, Expert Marksmanship Qualification Badge with Rifle Bar, Bronze Star Medal, Purple Heart, Good Conduct Medal, European-African-Middle Eastern Campaign Medal, and World War II Victory 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 award of the Silver Star.



      _______ _  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)                                         AR20090008469



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ABCMR Record of Proceedings (cont)                                         AR20090008469



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