IN THE CASE OF:	  

		BOARD DATE:	    4 May 2010

		DOCKET NUMBER:  AR20090019163 


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 the following corrections on his WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge):

* Item 34 (Wounds in Action) to show he was wounded in battle and sustained a severe compound fracture to his left ankle

* Item 10 (Date of Birth) to show his date of birth (DOB) as 15 May 1925 instead of 25 May 1925 

2.  The applicant states the following:

* Newspaper article describes one of the battles in which he participated

* The article states he suffered a sprained ankle but he suffered a severe compound fracture to his left ankle

* He woke up in the Seventh Station General Hospital, Leghorn, Italy with a cast up to his knee

* His company commander told him he would be commended for this injury

* He was supposed to receive honors and medals when discharged


3.  The applicant provides a self-authored letter, a National Archives and Records Administration (NA) Form 13038 (Certification of Military Service), and two newspaper clippings.

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 for the Board to conduct a fair and impartial review of this case.

3.  The applicant's WD AGO Form 53-55 shows he was inducted into the Army of the United States on 28 July 1943 and he entered active service on 18 August 1943.  His WD AGO Form 53-55 also shows he served in the European African-Middle-Eastern Theater of Operations from 30 April 1944 to 1 September 1945.

4.  The applicant provided a newspaper clipping which indicates he was commended for outstanding performance of duty.  The article quotes the commendation as follows:

For outstanding performance of duty on July 15, 1944, near Selvatelle, Italy.  When he and four other Soldiers became lost from their company during a heavy firefight, Pfc. C----- volunteered to contact the company.  Disregarding heavy enemy artillery, mortar and machinegun fire, he moved back over open terrain approximately 2,500 yards.  Though he sprained his ankle on the way, he never faltered and delivered his message successfully.  


Then, despite his injury and the heavy enemy fire, he returned to his comrades with a message from his platoon leader….

5.  The applicant was discharged on 20 November 1945 under the provisions of Army Regulation 615-365 (Enlisted Personnel - Discharge - Convenience of Government).  Item 34 on his WD AGO Form 53-55 shows the entry “None.”

6.  Item 10 on his WD AGO Form 53-55 shows his DOB as 25 May 1925.

7.  No medical records are available which show the applicant sustained wounds as a result of hostile action.

8.  The applicant provided a self-authored letter in support of his claim and states the following:

	a.  His discharge document shows two mistakes, his DOB and wounds received in action

	b.  He was born on 15 May 1925 and received a compound fracture of his left ankle during combat

   c.  Newspaper article contained errors in the report of the incident
   
   d.  He jumped in a ditch for protection from machinegun fire and his foot hit something
   
   e.  He got out of the ditch and took one step and fell

   f.  A medic gave him a shot and he woke up in a hospital in Leghorn, Italy with a cast up to his knee

9.  Department of the Army Technical Manual TM 12-235 (Discharge Procedures and Preparation of Separation Forms) established the policies and procedures for completion and distribution of the WD AGO Form 53-55 during World War II.  The manual states the DOB will be entered in item 10 and wounds received in action will be entered in item 34 of the WD AGO Form 53-55.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he sustained a severe compound fracture to his left ankle during combat.  However, no medical documents are available which verify the applicant was injured as a result of hostile action.  The regulation in effect at the time in question directed that wounds received in action would be recorded in item 34 of the WD AGO Form 53-55.

2.  The newspaper clipping commending the applicant for his outstanding performance of duty is acknowledged.  The article states the applicant sprained his ankle while delivering a message to his company.  No evidence of record is available which verifies this injury was sustained as a result of a hostile act of the enemy.  Therefore, there is insufficient evidence on which to base correction of item 34 to show he was wounded in battle.

3.  The applicant contends his DOB is 15 May 1925.  However, the evidence of record does not confirm the applicant’s DOB was incorrectly recorded on his WD AGO Form 53-55.  No evidence is available and the applicant has not provided any evidence other than his self-authored letter to support his claim.

4.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, this Board is reluctant to recommend that those records be changed.  While it is understandable the applicant desires to now record his correct DOB in his military records, there is not a sufficiently compelling reason for compromising the integrity of the Army’s records at this late date.  

5.  The applicant is advised that a copy of this decisional document along with his application and the supporting evidence he provided, which contain his stated correct DOB, will be filed in his Official Military Personnel File (OMPF).  This should serve to clarify any questions or confusion in regard to the difference in the DOB recorded in his military record and to satisfy his desire to have his stated correct DOB documented in his OMPF.

BOARD 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)                                         AR20090019163



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ABCMR Record of Proceedings (cont)                                         AR20090019163



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