IN THE CASE OF:	  

		BOARD DATE:	      6 OCTOBER 2009

		DOCKET NUMBER:  AR20090008731 


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 a deceased former service member (FSM) who passed away on 21 December 1994 requests, in effect, that his father be awarded the Purple Heart and any and all medals associated with his father's service.

2.  The applicant states, in effect, that there appears to be no record of his father having been awarded the Purple Heart despite his having been wounded in action on two separate occasions.  He was under the impression his father had in fact earned the Purple Heart along with other awards.

3.  In support of his application, the applicant submitted a total of 88 pages of copied documents.  Among the documents is a copy of a letter from his mother authorizing him to act in her stead, dated 8 May 2009; a copy of a self-authored letter explaining his resubmission of the application, dated 3 April 2009; a copy of correspondence he received from the Army Review Boards Agency Support Division, St. Louis, MO, dated 10 April 2009; the FSM's Certificate of Death; a copy of an application the FSM submitted to Post Number 604 of the Veterans of Foreign Wars of the United States [the application having been completed in the  FSM's own hand]; and 8 pages of documents containing information directly related to the wound sustained by the FSM during World War II.





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 service record is not available for the Board's review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center (NPRC) in 1973.  It is believed the FSM's records were lost or destroyed in that fire; however, there were sufficient documents on file in a reconstructed record, as well as those records submitted by the applicant, for the Board to conduct a fair and impartial review of this case.

3.  The FSM's reconstructed record shows he was inducted into the Army of the United States and entered active service on 3 July 1944 at Indianapolis, IN.  He was honorably discharged in the rank of private first class on 31 October 1945, under the provisions of Army Regulation 615-365 (Personnel Separations - Enlisted Personnel Discharge Convenience of Government) for the purpose of enlisting in the Regular Army (RA).

4.  The evidence of record shows the FSM enlisted in the RA on 1 November 1945 at Camp Butner, NC.  The FSM's military occupational specialty (MOS) at the time of his enlistment was 745 (rifleman).  The evidence of record further shows that he was honorably discharged on 26 November 1946 in the rank/grade of Technician Fifth Grade (Tec 5)/E-5.  At the time of his discharge from the RA he held MOS 345 (truck driver).

5.  Review of the FSM's WD AGO Form 53-55 for the period ending 31 October 1945 shows the following information:
 
	a.  Item 33 (Decorations and Citations) shows the FSM was awarded the European-African-Middle Eastern Theater Ribbon [correctly known as the European-African-Middle Eastern Campaign Medal] with two bronze service stars 

and the Combat Infantryman Badge.  Neither the Purple Heart nor any other awards are shown on this WD AGO Form 53-55.
   
   b.  Item 34 (Wounds Received in Action) shows the entry "Received GS [gunshot] Wound Rt. [right] Chest 10 March 1945."

   c.  Item 36 (Service Outside Continental U.S. and Return) shows the FSM departed the continental United States (CONUS) on 19 February 1945 for service in the European Theater of Operations (ETO) and returned to CONUS on 31 July 1945.

6.  Review of the FSM's WD AGO Form 53-55 for the period ending 26 November 1946 shows the following information:

   a.  Item 33 shows the FSM was awarded the World War II Victory Medal.  Neither the Purple Heart nor any other awards are shown on this WD AGO Form 53-55.

   b.  Item 34 shows the entry, "NONE."

   c.  Item 36 shows the entry "NO FOREIGN SERVICE" during the period covered by this report.

   d.  Item 55 (Remarks) shows he was issued the Lapel Button [correctly known as the Honorable Service Lapel Button, World War II].

7.  No "SGO (Surgeon General Office) Files" reports were found in the FSM's reconstructed service record.  The "SGO Files" is a health record research project, which involved transposing the hospital admission card data from the periods of World War II and the Korean conflict onto magnetic tape.  In 1988, the National Research Council made these tape files available to the National Personnel Records Center (NPRC).  The availability of the information to the NPRC received considerable publicity by the various veterans' service organizations.  It was widely believed that these tapes would become a valuable substitute for the records lost in the NPRC fire of 1973.  It is estimated that the SGO files document 95 percent of all hospitalized battle casualties from World War II and the Korean War.

8.  Despite the fact there were no SGO Files reports found in the FSM's reconstructed service record, the applicant provided 88 copies of documents among which 8 pages of documents were found containing information directly 

related to the FSM having sustained a wound during World War II.  These documents are and contain, in part, the following information:

	a.  a WD MD Form 52b (Emergency Medical Tag) dated 10 March 1945 shows the  FSM received a gunshot wound to the right anterior thorax in Spichern, France, while he was a member of Company L, 275th Infantry Regiment, at 0900 hours on 10 March 1945.  The FSM was treated and "tagged" 
at the 3rd Battalion, 275th Infantry's aid station and sent to Company B, 370th Medical Battalion, to receive additional medical treatment.  The supplemental record shows the FSM was further evacuated to the 70th Division clearing station at 1015 hours on 10 March 1945.

	b.  a WD AGO Form 8-24 (Medical Diagnosis Card) shows the FSM was admitted to the 93rd Evacuation Hospital on 10 March 1945.  Item 11 (Cause of Admission, Additional Diagnoses, Operations, Change of Status) shows he was admitted as a result of an NBI (non-battle injury), a laceration/wound of the chest wall.

	c.  a WD MD Form 52a (Index Record of Patients) shows the FSM was admitted from the 370th Medical Battalion as a result of a superficial/lacerating gunshot wound (bullet wound) to the anterior chest wall he sustained on
10 March 1945.  The wound was classified as a non-battle injury.  The WD MD Form 52a also shows that on 13 March 1945 the FSM was evacuated to "base" for 30 days.

	d.  a Disposition of Patient form (No Number) shows the FSM had a diagnosis of NBI, a laceration/wound of the chest wall on 10 March 1945.  The wound was identified on the form as having been accidentally incurred when the FSM was shot by a guard whom he awakened at 0900 hours on 10 March 1945.  The wound was determined to have been received in the line of duty and on 12 April 1945, after rehabilitation treatment, he was released to full duty.

9.  A WD MD Form 52 (Register Card) shows the FSM was admitted to the Regional Hospital at Fort Benning, GA on 9 February 1946.  The entry on this form shows "hernia, inguinal, right, indirect, reducible, incomplete, not strangulated, cause undetermined."  A Form O-2 (Operation Report) shows the FSM had a herniorrhaphy on 12 February 1946.  The FSM was subsequently returned to duty.

10.  During the period of the FSM's service, he served in CONUS for an aggregate period of 1 year, 2 months, and 18 days during the period 3 July 1944 through 18 February 1945 and 1 August 1945 through 26 November 1946.

11.  Army Regulation 600-45 (Personnel - Decorations), then in effect, provided for award of the Purple Heart to members of the armed forces of the United States and to civilians who were citizens of the United States serving with the 
Army, who were wounded in action against an enemy of the United States, or as a direct result of an act of such enemy provided such wound necessitated 
treatment by a medical officer.  For the purpose of awarding the Purple Heart, a 
wound is defined as an injury to any part of the body from an outside force, 
element, or agent in the face of the enemy.)

12.  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 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, and the medical treatment must have been made a matter of official record.  This regulation also lists examples of injuries or wounds which clearly do not justify award of the Purple Heart, which includes accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

13.  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.

14.  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 includes permanent assignment outside CONUS, duty as a crewmember aboard a vessel sailing ocean waters for 30 consecutive or 60 nonconsecutive days, or duty outside CONUS 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 CONUS for an aggregate period of one year.

15.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register), shows that during the FSM's assignment to Company L, 275th Infantry Regiment, 70th Infantry Division, this unit was 
credited with occupation of Germany for the period 2 May through 4 Jul 1945 and awarded the Army of Occupation Medal with Germany Clasp.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his father's record should be corrected to show award of the Purple Heart and any and all medals associated with his father's service.

2.  To be awarded the Purple Heart, substantiating evidence must be provided to verify that the FSM was wounded as a 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.

3.  There is no evidence, such as an "SGO Files" reports in the FSM's reconstructed service record which shows he was injured and treated for a wound as a result of hostile action.  The FSM's reconstructed records contain 
ample evidence that he indeed received a gunshot wound to the chest; however, 
he was a victim of an accidental firing.  According to official records, the FSM was accidentally shot by a guard whom he awakened at 0900 hours on 10 March 1945.

4.  The applicant's contention that his father was wounded in action on two separate occasions is not supported by the available documentary evidence.  Notwithstanding the entry on his WD AGO Form 53-55 for the period ending               31 October 1945, the evidence shows that the FSM was hospitalized on two occasions - once to receive treatment for the gunshot wound he accidentally received and the second time for repair of an inguinal hernia.  There were significant other medical and dental forms in the collection of records presented by the applicant; however, evidence of the FSM being wounded by a hostile enemy was not found.  Regrettably, based on the available evidence, the FSM is not entitled to any awards of the Purple Heart.

5.  The Army's award regulation provides that the Bronze Star Medal is awarded for heroism, meritorious achievement, or meritorious 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 is considered to be a citation in orders.  The evidence shows the FSM was awarded the Combat Infantryman Badge during World War II.  Based on this evidence and the special provisions of the Army's awards regulation, the FSM is therefore entitled to the Bronze Star Medal and to have it added to his WD AGO Form 53-55.

6.  The FSM served an aggregate period of over one year in CONUS.  The evidence shows he met the criteria for award of the American Campaign Medal.  There, the FSM is entitled to the American Campaign Medal and to have it shown on his WD AGO Form 53-55. 

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

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 FSM the Bronze Star Medal based on award of the Combat Infantryman Badge during World War II; and

	b.  adding to item 33 of the FSM's WD AGO Form 53-55 for the period ending
26 November 1946 the Bronze Star Medal, American Campaign Medal, and the Army of Occupation Medal with Germany Clasp.

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 any Purple Hearts.
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 his service in arms.



      ___________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)                                         AR20090008731



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ABCMR Record of Proceedings (cont)                                         AR20090008731



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