IN THE CASE OF:	  

		BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090008567 


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 her deceased brother, a former service member (FSM), be awarded the Purple Heart with two stars [sic] (i.e., the Purple Heart with 2 Oak Leaf Clusters).

2.  The applicant states that her brother was twice wounded in action – in December 1944 and on 12 February 1945 – and was then killed in action on 22 April 1945 on Luzon, Philippine Islands.  She adds that she requested her brother’s medals and received the Bronze Star Medal, the Asiatic-Pacific Campaign Medal with one bronze service star, the World War II Victory Medal, the Combat Infantryman Badge (1st Award), and the Army Lapel Button.  However, she did not receive the Purple Hearts.  She also states that she was unable to locate her brother’s death certificate from the Bureau of Statistics in Toledo, OH, as that office does not have certificates for anyone whose death was outside the United States.  She concludes that it has been two years since she started her efforts to get her brother’s Purple Heart (with 2nd Oak Leaf Cluster).  He died at the age of 21 for a country he truly loved and should be honored by awarding him his Purple Hearts.

3.  The applicant provides photographs of the FSM’s name in the Toledo, Ohio Memorial Mall; a photograph of the family’s tombstone in Toledo Memorial Cemetery; a copy of her birth certificate; and a copy of her marriage certificate, in support of her request.


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 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 FSM’s records were lost or destroyed in that fire.  Additionally, since the FSM was killed in action, no WD AGO Form 53-55 (Enlisted Record and Report of Separation -  Honorable Discharge) was created which would have provided a synopsis of his service.  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 FSM's reconstructed records contain a WD AGO Form 53-1 (Report of Death), dated 21 May 1945, that shows the FSM entered active service on 30 January 1943.  He held the rank of private first class and an infantry military occupational specialty.  He served in the Southwest Pacific Area and was killed in action on 22 April 1945.  

4.  Information obtained from hospital admissions cards created by the Office of The Surgeon General (OTSG) shows the following entries pertaining to the FSM:

	a.  in March 1944, while at Camp (now Fort) Polk, LA, he suffered an injury as a result of being hit by a baseball; 

	b.  on 5 February 1945, while a member of the 511th Parachute Infantry Regiment (PIR), 11th Airborne Division, he was wounded by fragments from an artillery shell while serving in the Southwest Pacific and was admitted and/or treated at an aid station; and

	c.  on 22 April 1945, also while serving with the 511th PIR, 11th Airborne Division, he was killed in action by enemy artillery.


5.  The 511th PIR was activated at Camp Toccoa, GA, on 5 January 1943, under the command of Colonel Orin D. Haugen.  An internet history provides:

   a.  The cadre of the 511th PIR were selected mainly from the 505th PIR which was then stationed at Fort Benning, GA.  The Regiment was formed from about 12,000 recruits, of which about 3,000 were selected to start basic training.  From the latter number, around 2,000 troopers formed the Regiment.

   b.  On 23 March 1943, the 511th PIR moved to Camp Mackall, NC to join the 11th Airborne Division.  Following 17 weeks of Basic Combat Training, the 511th journeyed to the Fort Benning Parachute School for three weeks of jump training. Of note, no 511th PIR Soldier who boarded a C-47 aircraft refused to make the jump.

   c.  In December 1943, the 511th returned to Camp Mackall for Advanced Infantry Training.  In January of 1944, the Regiment departed Camp Mackall for Camp Polk, LA to engage in further maneuvers and prepare for overseas movement.

   d.  In April 1944, the 511th departed Camp Polk for Camp Stoneman, CA.  On 8 May 1944, the Regiment departed from Pittsburgh, CA bound for the Asiatic-Pacific Theater of Operations (APTO) on the SS Sea Pike with about 2,000 troopers.  On 28 May 1944, the Regiment arrived at Oro Bay, New Guinea.

   e.  The 511th PIR was held in Strategic Reserve in New Guinea from May through October 1944, during which time they conducted airborne, jungle and amphibious training.  On 7 November 1944, the Regiment departed New Guinea by ship – the USS Cavalier – for the Leyte Campaign in the Philippine Islands. From 18 November to 27 December 1944, the Regiment participated in the Leyte Campaign in and around the towns of Abuyog, Dulag, Burauen, and Anonang.

   f.  The 511th went into reserve in the Dulag area of Leyte from 27 December 1944 to 21 January 1945.  From 22 January to 2 February, the Regiment prepared for the forthcoming airborne drop on Tagaytay Ridge and moved to Mindoro by sea and air.  On the 3 February 1945, the 511th jumped on Tagaytay Ridge, Luzon.  From there the Regiment moved to the Paranaque and the Pasay area and fought in the Ft. McKinley and Alabang areas until 19 February 1945. During this fighting, the Regimental Commander, Colonel Haugen, was mortally wounded on 11 February 1945 and died on 22 February.

   
g.  On 23 February 1945, in an effort to rescue some 2,147 prisoners still under Japanese control at the Los Baños prison, Company B, 511th PIR, plus the light machine gun platoon from Headquarters, made a pre-dawn jump on the prison.  Together with a simultaneous attack by a Reconnaissance Platoon and Filipino guerrillas, the prison was captured and the prisoners were transported to safety.  The plan was a textbook operation, no fatalities were suffered on the entire mission and all prisoners were rescued.

   h.  On the same day that the Los Baños internees were freed, the 11th Airborne Division was assigned a new mission; it was to engage and destroy all Japanese formations in southern Luzon, south of Manila.  As a result, the 511th PIR fought in the Real, Mt. Bijiang and Santo Tomas areas from 4-24 March 1945.  From 24 March to 11 April 1945, the Regiment, less the 3rd Battalion, operated in the Bauen and Batangas areas as 6th Army reserve.  During this period, the 3rd Battalion was attached to the 188th Glider Infantry Regiment (GIR) and fought in the Sulac, Sapac, Talisay and Malaraya Hill areas.  From 12 April to 4 May 1945, the 511th fought in the Mt. Malepunyo area near Lipa City, Batangas Province, Luzon, Philippine Islands.  It was during this operation during the Luzon campaign that the FSM was killed in action.

6.  There is no record of another injury/wound and/or treatment in December 1944.

7.  The FSM's reconstructed records do not contain orders awarding him the Purple Heart.

8.  War Department Technical Manual 12-236 (Preparation of Separation Forms) prescribed the policies and procedures for the preparation of separation forms.  It states, in pertinent part, that the purpose of the separation form is to provide the veteran with a separation certificate and a military or enlisted record and report of separation.  The WD AGO Form 53-55 is prepared for all enlisted personnel separated from the service due to discharge, release from active duty or transfer to a Reserve Component, or retired.  The WD AGO Form 53-55 is not prepared for enlisted Soldiers whose active duty ends with death.

9.  The Purple Heart was established by General George Washington at Newburgh, New York on 7 August 1782 during the Revolutionary War.  It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action.
10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded to members killed in action or for a wound sustained while in action against an enemy or 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.  

11.  Army Regulation 600-8-22 also states that the "Oak Leaf Cluster" denotes second or succeeding awards of the Purple Heart.  The regulation also states that a Purple Heart is authorized for the first wound suffered under conditions that meet the criteria for this award, but for each subsequent award an Oak Leaf Cluster will be awarded to be worn on the medal or ribbon.  Not more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent.  The first oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM should be awarded three Purple Hearts, i.e., the Purple Heart (2nd Oak Leaf Cluster).

2.  The evidence of record shows the FSM suffered a battle injury when he was wounded on 5 February 1945 by fragments of an artillery shell in the Southwest Pacific and was admitted to and/or treated at an aid station.  Therefore, he is entitled to an award of the Purple Heart.

3.  The evidence of record also shows the FSM was killed in action on 22 April 1945 as a result of enemy artillery.  Therefore, he is entitled to a second award of the Purple Heart.

4.  The FSM's reconstructed records do not show he sustained a combat injury or wound in December 1944 or that he was treated for such wound/injury.  The only other OTSG entry was for a baseball injury incurred while stationed at Camp Polk.  There is no evidence of the FSM’s entitlement to a third Purple Heart.








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 FSM be corrected by awarding him two awards of the Purple Heart for wounds received in action on 5 February 1945 and being killed in action on 22 April 1945.

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 third award of the Purple Heart. 

3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of the FSM’s service in arms.  




      _______ _   _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)                                         AR20090008567



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