BOARD DATE:	  23 March 2010

		DOCKET NUMBER:  AR20090013614 


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, award of the Purple Heart and the Silver Star and correction of his records to show he was promoted to master sergeant (MSGT) in 1945.

2.  The applicant states, in effect, that he should have been awarded the Purple Heart and the Silver Star for the first day of battle in the Vosges Mountains.  He also states he never received promotion to MSGT and he volunteered to go to Japan and did his job in 1945.

3.  In support of his application, the applicant provides copies of his WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge), his Bronze Star Medal citation, an article on the history of the 103rd Infantry, a letter from the National Personnel Records Center (NPRC), and letters to the Office of General Counsel and General Motors Card Company with attached invoice for the Advanced Media Group, LLC.

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 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 applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record, and documentation submitted by the applicant, for the Board to conduct a fair and impartial review of this case.

3.  The applicant requests award of the Silver Star.  However, there are no orders or other evidence on file in his reconstructed record that confirms award of this personal decoration.  In the absence of authority of this award, he may request award of the Silver Star under the provisions of Title 10, U.S. Code, section 1130.  The applicant has been notified by separate correspondence of the procedures for applying for this award under Title 10, U.S. Code, section 1130.  As a result, the request for award of the Silver Star will not be discussed further in these Proceedings.

4.  The applicant's available military records show that he was inducted into the Army of the United States on 1 December 1942 and entered on active duty on 12 December 1942.  He served overseas from 20 October 1944 to 13 July 1945. He was promoted to sergeant (SGT) on 5 May 1945.

5.  The applicant was honorably discharged from active duty in the rank of SGT on 20 September 1945, for the Convenience of the Government at Demobilization.  Entries on his WD AGO Form 53-55, Item 3 (Grade), show his rank as SGT.  Item 31 (Military Qualification and Date) lists the following awards:  the Combat Infantryman Badge and the Marksman Marksmanship Qualification Badge with Rifle Bar.  Item 33 (Decorations and Citations) lists the following awards:  the European-African-Middle Eastern Campaign Medal with two bronze service stars, Army Good Conduct Medal, and the Bronze Star Medal.  The Purple Heart is not listed as an authorized award.

6.  Item 34 (Wounds Received in Action) of the applicant’s WD AGO Form
53-55 shows the entry "None," which indicates he was not wounded while he served during World War II.


7.  There are no orders in the applicant’s available service personnel records that show he was awarded the Purple Heart.  There is also no evidence in his records that he was wounded or treated for wounds as a result of hostile action.  There is also no evidence of record that shows he was recommended for or promoted to MSGT prior to his separation.

8.  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 the 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.

DISCUSSION AND CONCLUSIONS:

1.  By regulation, to be awarded the Purple Heart, it is necessary to establish that a Soldier was wounded or injured in action.  There is no evidence of record and the applicant has provided insufficient evidence which shows that he was wounded or treated for wounds as a result of hostile action during World War II.  Based on the foregoing, the applicant does not meet the regulatory requirement for award of the Purple Heart.

2.  The applicant's contention that he should have been promoted to MSGT has been noted.  The evidence of record shows the highest grade he satisfactorily held was the rank of SGT.  There is no evidence in the available record and none was provided by the applicant to show he was recommended for or promoted to MSGT during his period of service or prior to his separation from the Army.  Therefore, it is concluded that his records and Item 3 of his WD AGO Form 53-55 are correct in showing his rank as SGT at the time of his separation.

3.  The documentation provided by the applicant was also considered; however, the overall merits of the case, including the submissions are insufficient as a basis to grant the applicant's requested relief.  In all cases, in the absence of evidence of record, the burden of proof rests with the applicants to submit substantiating/corroborating evidence.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.





aBOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_____  __x______  ___x__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________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)                                         AR20090013614



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ABCMR Record of Proceedings (cont)                                         AR20090013614



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