IN THE CASE OF:	

		BOARD DATE:	  9 December 2009

		DOCKET NUMBER:  AR20090010924 


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 record of her husband, a former service member, be corrected to show he earned the Silver Star (SS).

2.  The applicant states, in effect, that the FSM was wounded in Germany on 
8 December 1944.  She claims that although he was wounded and in an ambulance on the way to a hospital in Paris, France, the FSM again went beyond the call of duty.  She states that later, as best recalled, the patients in the hospital in Paris were transferred to a hospital somewhere in England.  She claims that because there were no medals available at the hospital at the time, the FSM was issued a SS certificate in its place.  

3.  The applicant states that after his discharge, the FSM went to the VA (Veterans Administration) and exchanged the SS certificate for the medal.  She states the SS medal remains proudly displayed on the FSM's uniform, along with his other awards, which is now in the possession of their son.

4.  The applicant states that among the FSM's awards is the Combat Infantryman Badge (CIB), which has a silver star inside the wreath, denoting five major battles, which she believes the FSM is proudest of.  The applicant states that she hopes there is a record of the FSM being awarded the SS because he did earn it and receive it.

5.  The applicant provides a self-authored letter, a Bronze Star Medal (BSM) order, and the FSM's WD AGO Form 53-55 (Enlisted Record and Report of Separation -Honorable Discharge) 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 FSM's complete 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 FSM’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 a reconstructed record that consist of the FSM's WD AGO Form 53-55, an Office of The Surgeon General (OTSG) Hospital Admission Record, a War Department Form 372A (Final Payment Work Sheet), and BSM orders.

3.  The FSM's WD AGO Form 53-55 shows he was inducted into the Army of the United States on 9 October 1942 and he entered active duty on 23 October 1942, and that he served until being honorably separated on 7 November 1945 in the rank of private first class.  It also shows he served in the European Theater of Operations (ETO) from 27 May 1944 to 17 October 1945.  Item 31 (Military Qualifications) shows he received the CIB in January 1943.  Item 32 (Battles and Campaigns) shows he participated in the Normandy, Northern France, and Rhineland campaigns of World War II.  Item 33 (Decorations and Citations) shows he earned the European-African-Middle Eastern (EAME) Campaign Medal, Army Good Conduct Medal, and BSM during his active duty tenure.  Item 34 (Wounds Received in Action) shows he was wounded in action in the ETO on 8 December 1944.

4.  The FSM's NPRC file contains an OTSG Hospital Admission Record that shows he was admitted to a medical treatment facility in the ETO on 7 December 1944, and he was treated for a battle-related concussion (sudden blow of object) he received as a result of artillery shell fragments.  It also contains Headquarters, 8th Infantry Division, General Orders Number 11, dated 11 January 1945, which awarded the FSM the BSM for heroic achievement in connection with military operations against the enemy on 10 December 1944 in Germany.
5.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH.  It states, in pertinent part, that in order to award a PH there must be evidence that the wound for which the award is being made was received as a result of enemy action; that the wound required treatment by medical personnel; and a record of this medical treatment must be supported by medical treatment records that were made a matter of official record.

6.  Paragraph 3-1 of the awards regulation states, in pertinent part, that the decision to award an individual a decoration and as to which award is appropriate are both subjective decisions made by the commander having award approval authority.

7.  Paragraph 3-10 of the awards regulation contains guidance on award of the SS and states, in pertinent part, that it is awarded for gallantry in action of a lesser degree than required for the Distinguished Service Cross.

8.  Paragraph 3-14 contains guidance on award of the BSM and states, in pertinent part, that it is awarded for heroic acts, or meritorious achievement or service, of a lesser degree than required for the SS.  It further states that a "V" Device is authorized for a BSM awarded for heroism (valor) and an Oak Leaf Cluster is awarded to denote a 2nd or subsequent award of the BSM.

9.  Paragraph 3-14d (2) of the awards regulation authorizes award of the BSM 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.

10.  Paragraph 5-12 of the awards regulation contains guidance on award of the World War II Victory Medal and states, in pertinent part, that it is authorized for service between 7 December 1941 and 31 December 1946.  Paragraph 5-13 
contains guidance on the EAME Campaign Medal and states, in pertinent part, that a bronze service star is authorized with this award for each campaign a member is credited with participating in while serving in the ETO.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the FSM was awarded the SS was carefully considered.  However, the existing file is void of any corroborating evidence that the applicant was ever recommended for or awarded the SS by proper authority while serving on active duty.  Regrettably, there is insufficient evidence to support granting this portion of the applicant's requested relief.
2.  However, it is clear the FSM was awarded the BSM for heroism in connection with military operations against the enemy in Germany on 10 December 1944.  This date appears to coincide with the timeframe during which the applicant believes the FSM was awarded the SS.  As a result, it is likely the actual award received by the FSM being referred to by the applicant is in fact the BSM.

3.  Further, because the FSM earned this BSM for heroism, he is authorized a "V" (Valor) Device for wear with it.  In addition, because he earned the CIB, he is also eligible for a 2nd award of the BSM, for his exemplary conduct in ground combat against an armed enemy in the ETO between 27 May 1944 and 
2 September 1945.  Therefore, his WD AGO Form 53-55 should be corrected by deleting the current BSM entry in item 33 and replacing it with the entry BSM (1st Oak Leaf Cluster) with "V" Device denoting two awards of the BSM, one with "V" Device.

4.  The evidence also confirms the FSM was wounded in action in the ETO on 
8 December 1944, as evidenced by the entry in item 34 of his WD AGO Form 
53-55 and by the OTSG Hospital Admission Record on file.  Therefore, he should be awarded the PH and it should be added to his WD AGO Form 53-55.  Given hospital commanders had the authority to award the PH for wounds received in action, this also could possibly be the award the applicant believes the FSM was awarded and for which he received a certificate while in the hospital.

5.  Finally, based on his World War II service and campaign participation in the ETO, the FSM is also eligible for the World War II Victory Medal and 2 bronze service stars for wear on his EAME Campaign Medal to denote his participation in two campaign phases during his tenure of service.

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 WD AGO 53-55 the Bronze Star Medal and the European-African-Middle Eastern Campaign Medal;

	b.  awarding the FSM the Purple Heart for being wounded in action in the ETO on 8 December 1944;

	c.  awarding the FSM the Bronze Star Medal (1st Oak Leaf Cluster) based on award of the Combat Infantryman Badge;
 
	d.  adding to item 33 of the FSM's WD AGO Form 53-55 the Bronze Star Medal (1st Oak Leaf Cluster) with "V" Device, Purple Heart, European-African-Middle Eastern Campaign Medal with 2 bronze service stars, and the World War II Victory Medal; and

	e.  providing the applicant a correction to his WD AGO Form 53-55 that includes these changes. 

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 Silver Star to his record and WD AGO Form 53-55.



      __________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)                                         AR20090010924



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ABCMR Record of Proceedings (cont)                                         AR20090010924


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