IN THE CASE OF:	  

		BOARD DATE:	  19 May 2010

		DOCKET NUMBER:  AR20090019197 


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 award of the Purple Heart.

2.  The applicant states he served as a combat infantryman/radio operator with the Buffalo Soldiers during World War II and he participated in the Rome-Arno, Appennines, Po Valley, and Southern France campaigns.

	a.  He states he was wounded in battle, but did not receive medical care due to the severity of the battle and lack of medics assigned to the unit.

	b.  He states he was recently awarded service connection by the Department of Veterans Affairs (VA) for residuals of a shrapnel wound to his face and mouth.

	c.  He adds he was awarded the Combat Infantryman Badge on 15 March 1945 and should have received the Purple Heart and an award for his actions in combat.

3.  The applicant provides copies of his discharge document, three photographs, a letter from his oral surgeon, his VA appeal, a history of 92nd Infantry Division, and a one-page extract from Buffalo Soldiers in Italy.

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 service 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 Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) is partially burned.  It shows he entered active service in the Army of the United States on 19 October 1942 and he was honorably discharged on 5 December 1945.  It also shows he completed 1 year, 8 months, and 25 days of foreign service.

* Item 6 (Organization) shows he was assigned to the 365th Infantry.

   * Item 31 (Military Qualification and Date) shows he was awarded the Combat Infantryman Badge on 15 March 1945.

   * Item 32 (Battles and Campaigns) shows the Northern Apennines, 
Po Valley, and Southern France campaigns.

   * Item 33 (Decorations and Citations) shows the [Good] Conduct Medal, European-African-Middle Eastern (Theater of Operations) Campaign Medal,  ATO (American Theater of Operations) Medal [American Campaign Medal], and World War II Victory Medal.

   * Item 36 (Service Outside Continental U.S. and Return) shows he departed the U.S. on 3 March 1944, arrived in the European Theater of Operations (ETO) on 12 March 1944, departed the ETO on 16 November 1945, and arrived in the U.S. on 27 November 1945.

4.  The applicant enlisted and reentered active duty on 21 February 1946.

5.  A WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty or Retirement), dated 17 June 1947, shows in Item 11 (List all significant diseases, wounds, and injuries.  State circumstances under which wounds or injuries were incurred and date of onset) the entry "1943 Fractured Ankle."

6.  A WD Form 53-55 shows the applicant was honorably discharged on
17 August 1947.  At the time he had completed 1 year, 5 months, and 27 days of continental service and 4 years, 7 months, and 29 days of service for pay purposes.  Item 33 does not show award of the Purple Heart.

7.  There is no evidence in the applicant's available military service records that shows he was awarded the Purple Heart.

8.  Review of the National Archives and Records Administration Electronic Military Records System revealed that there is no record that the applicant was wounded in action during World War II.

9.  In support of his application, the applicant provides copies of the following documents:

	a.  his WD Form 53-55 that appears intact and confirms the information outlined in paragraph 3 (above), in addition to the following:

* he was inducted into the Army of the United States on 4 October 1942;

* he completed 1 year, 5 months, and 7 days of continental service;
1 year, 8 months, and 25 days of foreign service; and 3 years, 2 months, and 2 days of service for pay purposes;

* he was assigned to the Anti-Tank Company, 365th Infantry;

      * he was awarded military occupational specialty 776 (Radio Operator, Low Speed);

      * item 32 shows the "ROME-ARNO, AND APPENNINES  [emphasis added]  PO VALLEY  SOUTHERN FRANCE" campaigns; and
      
* item 34 (Wounds Received In Action) shows the entry "None."

   b.  Three photographs with handwritten captions indicating they show the applicant at Camp McClellan, Alabama; Fort Huachuca, Arizona; and Naples, Italy (respectively) wearing his Army uniform.
   c.  A letter from Robert R. T------, Jr. Doctor of Dental Surgery, dated 13 July 2005, addressed to Doctor D---.  He writes, "[applicant] also has evidence of shrapnel in the upper right and lower right regions which does not seem to bother him.  It may be located in the cheeks rather than the gingival area we will explore this during debridements."

   d.  His VA appeal, dated 29 September 2009, for entitlement to service connection for residuals of a shrapnel wound to the face and mouth.
   
      * The applicant contended that the shrapnel located in the jaw regions on the right side of his face and mouth originated from a shrapnel wound which he sustained during World War II while serving as a combat infantryman.  He described to the VA (in August 2009) several specific situations during his service in which shrapnel could have hit him in the face.  [The situations are not described in the evidence provided.]
   
      * The applicant's service treatment records (including a June 1947 separation examination report) are negative for any complaints, diagnosis, or treatment of a shrapnel wound to the face and mouth.  He stated in his appeal that "he did not stop and receive medical care when he was wounded in service because he was in a combat zone."

      * The VA found that the residuals of a shrapnel wound to the face and mouth were shown by competent medical evidence to be causally related to the applicant's military service.  It concluded a shrapnel wound to the face and mouth was incurred during his active service.  The applicant's entitlement to service connection for residuals of a shrapnel wound to the face and mouth was granted.

   e.  A six-page Internet history of the 92nd Infantry Division in Italy during World War II, along with seven pages of comments.  [The applicant is not mentioned in the document.]
   
   f.  A one-page extract from Buffalo Soldiers in Italy, by Hondon B. Hargrove, that describes actions of the 365th Combat Team in Italy.  [The applicant is not mentioned in the document.]

10.  A review of the applicant's available records reveals he may be authorized an additional award that is not shown on his WD AGO Form 53-55.

11.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.

	a.  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.  This means, in effect, that the Bronze Star Medal is to be awarded to individuals who were authorized either badge for service during World War II.

	b.  A bronze service star is authorized, based on qualifying service, for each campaign listed in Appendix B of this regulation.  Authorized bronze service stars will be worn on the appropriate service medal, including the European-African-Middle Eastern Campaign Medal.

	c.  The Purple Heart is awarded to any member who has been wounded or killed in action.  A wound is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.  In order to support awarding a member the Purple Heart, it is necessary to establish that the wound for which the award is being made required treatment by medical personnel and the medical treatment for the wound or injury received in action must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart or some other individual decoration because he served as a combat infantryman/radio operator during World War II, he was wounded in action, but did not receive medical care due to the severity of the battle and lack of medics in the unit.

2.  There is no evidence in the applicant's available military service records that shows he was wounded while in action or as a result of enemy action.

3.  The Army regulatory guidance governing the criteria for award of the Purple Heart is clear in that the wound for which the award is made must have been sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy, the wound must have required treatment by medical personnel, and record of the medical treatment for the wound or injury sustained in action must have been made a matter of official record.

4.  The sincerity and authenticity of the applicant's comments that he was wounded during World War II, but did not receive medical care are not in question.  The Board notes that the VA provides compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning.  Moreover, the law requires the VA to give the veteran the benefit of any reasonable doubt.  The fact that the VA, in its discretion, granted the applicant service connection for residuals of a shrapnel wound to the face and mouth is a prerogative exercised within the policies of that agency.  However, it does not establish entitlement to the Purple Heart.

5.  Based on the available evidence, there is insufficient evidence to support the applicant’s claim to the Purple Heart.  Therefore, there is no basis for correcting the applicant's military service records to show award of the Purple Heart.

6.  The applicant was awarded the Combat Infantryman Badge for exemplary conduct in action against the enemy during World War II.  An award of the Combat Infantryman Badge is considered to be a citation in orders.  This means that the Bronze Star Medal is to be awarded to individuals who were authorized the Combat Infantryman Badge for service during World War II.  Therefore, it would be appropriate to correct the applicant's records to show award of the Bronze Star Medal.

7.  The applicant was awarded the European-African-Middle Eastern Campaign Medal and records indicate he served in four campaigns during World War II. Therefore, it would be appropriate to correct his records to show award of four bronze service stars to be affixed on his already-awarded European-African-Middle Eastern Campaign Medal.

8.  The applicant completed 1 year, 5 months, and 7 days of continental service during the period of service under review.  Item 33 of the applicant's 5 December 1945 WD AGO Form 53-55 shows the "ATO Medal."   This entry may represent the "American Theater of Operations" Medal.  The ATO Medal is not an authorized decoration.  However, the applicant qualified for award of the American Campaign Medal, which would also be the appropriate entry for the service medal.  Therefore, his records should be corrected to show the American Campaign Medal.


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.  awarding him the Bronze Star Medal for meritorious achievement for exemplary conduct in ground combat during the period 12 March 1944 to
15 March 1945;
   
   b.  deleting from item 33 of his 5 December 1945 WD AGO Form 53-55 the "EAMETO Medal" and "ATO Medal"; and
   
   c.  adding to item 33 of his 5 December 1945 WD AGO Form 53-55 the Bronze Star Medal, European-African-Middle Eastern Campaign Medal with four bronze service stars, and American 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 the Purple Heart.  



      _______ _   _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)                                         AR20090019197



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ABCMR Record of Proceedings (cont)                                         AR20090019197



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