IN THE CASE OF:	

		BOARD DATE:	  27 April 2010

		DOCKET NUMBER:  AR20090018064 


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 - Honorable Discharge) by adding the Purple Heart (PH), European-African-Middle Eastern Campaign Medal (EAME), Army Good Conduct Medal (AGCM), and World War II Victory Medal; and by documenting his Prisoner of War (POW) status.

2.  The applicant states he recently saw someone's report of separation with similar combat experience as his and all of that individual's awards were listed.  He further states he spent his last months of his Army service in the hospital after being wounded in France on 12 December 1944.  He claims while trying to hide from an invading force of Germans, a grenade was thrown into the building he and his comrades were in and exploded near his head.  He states the next thing he remembers is being treated for his wounds by a German soldier.  He adds they became their prisoners and were liberated the next day when some GI's attacked the Germans who were holding them.

3.  The applicant provides a WD AGO Form 53-55.

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 (NPRC) in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  This case is being considered based on a National Personnel Records Center (NPRC) reconstructed record consisting of the applicant's WD AGO Form 53-55 and an Office of the Surgeon General (OTSG) Hospital Admission Record.

3.  The applicant’s WD AGO Form 53-55 shows he was inducted into the Army of the United States and entered active duty on 7 June 1944.  He held and served in military occupational specialty (MOS) 745 (Rifleman).  He served in the European Theater of Operations (ETO) from 27 November 1944 to 14 February 1945 with Company B, 142nd Infantry Regiment.

4.  Item 31 (Military Qualification and Date) of the applicant's WD AGO Form 
53-55 shows he earned the Marksman Marksmanship Qualification Badge with Rifle Bar (M-1 Rifle).  Item 32 (Battles and Campaigns) contains the entry "Participated in action against the enemy in ETO.  Served in France
30 Nov[ember] 1944."  Item 33 (Decorations and Awards) contains the entry "Not Shown" and item 34 (Wounds Received in Action) contains the entry "Wounded in Action 12 Dec[ember 19]44.  Item 40 (Reason and Authority for Separation) shows he was separated with a Certificate of Disability for Discharge.

5.  The applicant's WD AGO Form 53-55 also shows that he was honorably discharged on 20 July 1945 in the rank of private.  Item 37 (Total Length of Service) shows he completed 9 months and 11 days of continental service and 
4 months and 3 days of foreign service.

6.  The OTSG Hospital Admission Record in the NPRC file shows the applicant was admitted to a medical treatment facility on 12 December 1944.  He was diagnosed with and treated for psychoneurosis and anxiety.  It fails to identify his conditions as being battle-related and indicates the causative agent was not 

found.  It also shows he was ultimately discharged with a Certificate of Disability for Discharge based on traumatism.

7.  The applicant's NPRC file is void of any documents indicating he was held as a POW or that shows he was ever treated for a combat-related wound resulting from a grenade explosion.

8.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to award a PH there must be evidence that a member was wounded or injured as a result of enemy action.  The wound or injury for which the PH is being awarded must have required treatment by medical personnel, and a record of this treatment must have been made a matter of official record.

9.  Paragraph 2-8g of the awards regulation contains examples of wounds that clearly support award of the PH.  These examples do not include psychoneurosis and anxiety.  Paragraph 2-8h provides examples of injuries or wounds which clearly do not justify award of the PH.  These include battle fatigue and post traumatic stress disorders.

10.  Paragraph 2-9 of the awards regulation contains guidance on award of the POW Medal.  It states it is authorized to any member taken prisoner and held captive while engaged in an action against an enemy of the United States.  It further states that all requests for award of the POW Medal for past armed conflicts will be initiated by former POWs or their next of kin, using a personal letter.  The following documents, as applicable, should be submitted with POW Medal applications to assist in validating the award:  Army separation documents; casualty reports; messages/letters/telegrams sent home; unit journals; diaries; sworn eyewitness statements or affidavits; photos, ID Card, or other documents taken or obtained while in captivity; news clippings and other evidence in support of the request.

11.  The same regulation states POW status and medal applications or personal letters should be forwarded to the NPRC at 9700 Page Avenue, St. Louis, MO 63132-5100 for members retired or discharged prior to 1 October 2002.  Statutory and regulatory time limits pertaining to award of the POW Medal do not apply.  Award of the POW Medal may be awarded at anytime after submission of documented evidence that all criteria have been met.

12.  Paragraph 5-13 of the awards regulation contains guidance on the EAME Campaign Medal.  It states it is awarded for 30 consecutive days or 60 nonconsecutive days of service in the ETO, or to members who were in active combat against the enemy and was awarded a combat decoration, or who was furnished a certificate by the commanding general of a corps or higher unit or independent force showing that he actually participated in combat.  The regulation also authorizes wear of a bronze service star on this medal for each campaign participation credit.

13.  Department of the Army Pamphlet 672-1 (Unit Campaign Participation Credit Register-World War II) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during World War II.  This source confirms that during his tenure of assignment, the applicant’s unit (142nd Infantry Regiment) participated in the Rhineland campaign.

14.  Paragraph 5-11 of the awards regulation provides, in pertinent part, for award of the World War II Victory Medal.  It is awarded for service between 7 December 1941 and 31 December 1946, both dates inclusive.

15.  Army Regulation 600-68 (Good Conduct Medal), in effect at the time, provided policy and criteria concerning the AGCM.  It stated the AGCM was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940 and, after 7 December 1941, completed
1 year or continuous active Federal military service while the United States was at war.  The award would not be made to an enlisted man whose records, during the required period of service, disclosed a conviction by any court-martial, or to one whose character or efficiency was rated below “excellent.”  The fact that an enlisted man was entitled to an AGCM or clasp would be noted under "remarks" of the [Report of Separation and] discharge certificate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the World War II Victory Medal and EAME Campaign Medal should be added to his WD AGO Form 53-55 has been carefully considered and found to have merit.  The evidence confirms that based on his qualifying World War II service and participation in the ETO, as evidenced by an entry in item 32 of his WD AGO Form 53-55, he is eligible for the World War II Victory Medal and EAME Campaign Medal with one bronze service star for his participation in the Rhineland campaign.  As a result, these awards should be added to item 33 of his WD AGO Form 53-55.

2.  The applicant's contention that the PH should be added to his WD AGO Form 53-55 has been carefully considered.  However, by regulation, in order to support award of the PH there must be evidence that the wound for which it is being awarded was received as a result of enemy action; that it required treatment by medical personnel; and a record of this medical treatment must have been made a matter of official record.

3.  The applicant's WD AGO Form 53-55 contains an entry in item 34 indicating he was wounded in France on 12 December 1944.  However, the OTSG Hospital 
Admission Record in the NPRC file confirms he was admitted to a medical treatment facility on 12 December 1944 and treated for psychoneurosis and anxiety.  These conditions are not identified as qualifying wounds or injuries supporting award of the PH in the governing regulation.  Further, the regulation identifies battle fatigue and post traumatic stress disorders as conditions that do not justify award of the PH.

4.  The OTSG Hospital Admission Record gives no indication that the conditions the applicant was treated for were battle-related.  Further, there is no indication he was treated for any wounds or injuries resulting from a grenade explosion, as evidenced by the entry indicating the causative agent with not found.  Further, there is no evidence in the NPRC file or provided by the applicant that indicates he ever received a qualifying wound as a result of enemy action, or that he was ever recommended for or awarded the PH by proper authority while serving on active duty.  As a result, the regulatory burden of proof necessary to support award of the PH has not been met in this case.

5.   The applicant's contention that he was taken as a prisoner and his WD AGO Form 53-55 should document this status has also been carefully considered.  However, there is no evidence in the remaining NPRC file that corroborates the applicant's claim and he fails to provide corroborating official documents (casualty reports or sworn eyewitness statements or affidavits) that corroborate his claim.

6.  Further, there is no indication the applicant applied for POW status through proper channels.   As a result, there is an insufficient evidentiary basis to support granting this portion of the requested relief.  However, the applicant is advised he may still apply to the NPRC at 9700 Page Avenue, St. Louis, MO 63132-5100 for POW status if he can provide the supporting documentation necessary to support his claim.

7.  The applicant's WD AGO Form 53-55 confirms he served on active duty from 7 June 1944 to 20 July 1945, and was subsequently honorably discharged.  However, absent military records, his eligibility for the AGCM cannot be established.  Regrettably, there is an insufficient evidentiary basis to support award of the AGCM at this late date.

8.  The applicant and all others concerned should know that this action related to award of the PH, AGCM and POW status in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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.  adding to item 33 of his WD AGO Form 53-55 the World War II Victory Medal and the European-African-Middle Eastern Campaign Medal with one bronze service star; and
   
   b.  providing him a correction to his separation document 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 award of the Purple Heart, Army Good Conduct Medal, and Prisoner of War status.



      ____________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)                                         AR20090018064



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ABCMR Record of Proceedings (cont)                                         AR20090018064



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