IN THE CASE OF:	

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090017578 


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 correction of his WD AGO Form 53-55 (Enlisted Record and Report of Separation) to show award of the Purple Heart and his first name as Fred instead of Frederick.

2.  The applicant states that the first name Frederick is listed in error and that the Purple Heart is missing.

3.  The applicant provides a copy of his WD AGO Form 53-55, dated 27 August 1945; a copy of his standard certificate of birth, dated 13 February 1918; a copy of a letter, dated 19 October 1945, from the Philadelphia Quartermaster Deport; and a copy of a VA Form P-80a (Award of Disability Compensation or Pension), dated 21 February 1949, in support of his 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 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 his records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  His WD AGO Form 53-55 shows he was inducted in the Army of the United States and entered active duty on 3 February 1942.  A copy of his induction record, which would have determined the first name used upon his induction, is not available for review with this case.  

4.  His WD AGO Form 53-55 shows that at the time of his separation he held military occupational specialty 745 (Rifleman) and was assigned to the 21st Infantry Regiment. 

5.  His WD AGO Form 53-55 shows he departed the continental United States (CONUS) on 7 June 1942 and he arrived in the Asiatic Pacific Theater (APT) on 15 June 1942.  He departed the APT on 21 July 1945 and arrived back in CONUS on 22 August 1945.  He completed 4 months and 9 days of continental service and 3 years, 2 months, and 16 days of foreign service.  He was honorably separated on 27 August 1945.

6.  Item 1 (Last Name, First Name, Middle Name) of his WD AGO Form 53-55 shows his first name as Frederick.  He authenticated this form by placing his signature in the appropriate place using the first name Frederick.

7.  Item 31 (Military Qualifications and Date (i.e. infantry, aviation, and marksmanship badges, etc.)) of his WD AGO Form 53-55 shows he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-1) on 12 May 1943 and the Combat Infantryman Badge on 11 June 1944 (shown in item 55 (Remarks).

8.  Item 32 (Battles and Campaigns) of his WD AGO Form 53-55 shows he participated in the Southern Philippines, Luzon, and New Guinea campaigns during World War II (WWII).



9.  Item 33 (Decorations and Citations) of his WD AGO Form 53-55 shows he was awarded the Asiatic-Pacific Campaign Medal, Good Conduct Medal, and Philippine Liberation Ribbon with two bronze service stars.  Item 33 does not show award of the Purple Heart.

10.  Item 34 (Wounds Received in Action) of his WD AGO Form 53-55 contains the entry "Leyte P I 9 Nov 44" indicating he was wounded in action in Leyte, Philippine Islands, on 9 November 1944.  

11.  He submitted the following documents:

	a.  A copy of a VA Form P-80a, dated 21 February 1949, that listed his first name as Frederick and awarded him service-connected disability compensation. 

	b.  A copy of a letter, dated 19 October 1945, also listing his first name as Frederick, notifying him that a replacement Purple Heart would be reissued and mailed to him.

	c.  A copy of his standard certificate of birth, dated 13 February 1918, listing his first name as Fred.

11.  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.

12.  The applicant's reconstructed records show he is entitled to additional awards that are not listed on his WD AGO Form 53-55.

13.  Army Regulation 600-8-22 (Military Awards) provides for the following awards:

	a.  The World War II Victory Medal was established by the act of Congress on 6 July 1945.  It was awarded for service between 7 December 1941 and 
31 December 1946, both dates inclusive.  

	b.  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.

	c.  The Asiatic-Pacific Campaign Medal is awarded for service in the Asiatic-Pacific Theater of Operations between 7 December 1941 and 2 March 1946.  A bronze service star is authorized for each campaign listed in Appendix B of this regulation or listed in item 32 of the member's WD AGO Form 53-55. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows he was wounded in combat as a result of enemy action on 9 November 1944 and was awarded the Purple Heart but it is not listed on his WD AGO Form 53-55.  Therefore, he is entitled to correction of his records to show this award.

2.  The evidence of record shows he was awarded the Combat Infantryman Badge; therefore, he is entitled to award of the Bronze Star Medal based on award of this Combat Infantryman Badge and correction of his WD AGO Form 53-55 to show this award.

3.  The evidence of record shows he served a qualifying period for award of the World War II Victory Medal; therefore, he is entitled to award of the World War II Victory Medal and correction of his records to show this award.

4.  The evidence of record shows he was awarded the Asiatic-Pacific Campaign Medal.  Furthermore, his records show he participated in three campaigns during his service in WWII.  Therefore, he is entitled to award of three bronze service stars to be affixed to his already-awarded Asiatic-Pacific Campaign Medal.

5.  With respect to his first name, his induction record is not available for review with this case.  It is unclear what name he used upon his induction into the Army of the United States.  However, he provided various documents including a copy of a properly constituted WD AGO Form 53-55 that listed his first name as Frederick.  In the absence of evidence to the contrary, it is presumed that the name shown on his WD AGO Form 53-55 is correct. 

6.  The Army has an interest in maintaining the accuracy of its records for historical purposes.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created.  In the absence of compelling information to the contrary, there is no basis for changing the records in this case.  

7.  A copy of this decisional document along with his application will be filed in his military service records.  This should serve to clarify any questions or confusion regarding his different first names and adequately document his first name in his record for the purpose of entitlement to veterans' benefits.  

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 adding to his WD AGO Form 53-55 the Purple Heart, the Bronze Star Medal, the World War II Victory Medal, and three bronze service stars be affixed to his already-awarded Asiatic-Pacific Campaign 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 his first name.




      _______ _   _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)                                         AR20090017578



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ABCMR Record of Proceedings (cont)                                         AR20090017578



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