IN THE CASE OF:	  

		BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20100007947 


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 item 33 (Decorations and Citations) of his WD AGO Form 53-55 (Enlisted Record and Report of Separation) to reflect award of the Purple Heart.

2.  The applicant states he was shot by a German Soldier on 15 December 1944. Had he not been shot, he would not have been captured.  He contends that as he was jumping into a foxhole to avoid further injury, he twisted his right knee and was injured so badly that he could not escape being captured by the enemy forces on 18 December 1944.  He was subjected to marching barefoot in the snow with an injured knee, to eat grass soup with worms, forced labor, and a myriad of other atrocities until he was liberated on 2 May 1945.  He adds that he has been trying for decades to get his discharge changed to reflect the Purple Heart.  He was wounded by the enemy and does not understand why the records that reflect his gunshot injury cannot be found.  

3.  The applicant provides a copy of his WD AGO Form 53-55, National Archives and Records Administration (NARA) forms, and Department of Veterans Affairs (DVA) forms in support of this application.

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 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 to conduct a fair and impartial review of this case.

3.  The applicant's WD AGO Form 53-55 indicates that:

	a.  he was inducted into the Army of the United States on 5 January 1944 and entered active duty service on 26 January 1944;

	b.  he was assigned to Company G, 422nd Infantry Regiment and served in the European-African-Middle Eastern (EAME) theater of operations from 
30 October 1944 to 13 June 1945;

	c.  he earned the Combat Infantryman Badge;

	d.  he participated in the Ardennes and Rhineland campaigns and was awarded the EAME Campaign Medal with two bronze service stars, the American Campaign Medal, Army Good Conduct Medal, and the World War II Victory Medal;

	e.  he was not wounded while in action; and

	f.  he was honorably discharged on 30 November 1945 in the rank of corporal.

4.  The applicant's available records contain a WD AGO Form 33 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty or Retirement), dated 29 November 1945.  Item 11 of this form requires that all significant diseases, wounds, and injuries and the circumstances under which wounds or injuries were incurred be annotated.  Item 11 of this form shows the entry "None."

5.  The applicant provided a document from the Provost Marshal General's 
Office - American Prisoner of War (POW) Information Bureau that contains the names of American military personnel reported in the hands of the enemy (Germany) as of December 1944.  His name is listed on this document.

6.  A DA Form 1577 (Authorization for Issuance of Awards), dated 19 August 1988, shows the Army Reserve Personnel Center, St. Louis, Missouri, authorized the issuance of the POW Medal to the applicant.  There is no indication his military records were corrected to show this award.

7.  The applicant also provided a DVA Rating Decision Document that shows he was granted service connected disability compensation for post gastrectomy with vagotomy and hiatal hernia, right knee arthritis, and hypertensive vascular disease.  This document also indicates that according to DVA's records, he was a POW in Germany from 18 December 1944 to 2 May 1945.

8.  The NARA and DVA forms provided by the applicant confirm he was held as a POW while in Germany; however, these forms failed to confirm that he was wounded as a result of hostile action or that he received treatment for any such wounds.  

9.  There is no evidence in the available records that shows he sustained injuries as a result of hostile action or that he received treatment for injuries that were sustained as a result of hostile action.

10.  Army Regulation 600-8-22 (Military Awards) states 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 by medical personnel, and the medical treatment must have been made a matter of official record.

11.  Army Regulation 600-8-22 states the POW Medal was authorized on 8 November 1985 and is awarded to individuals who in past armed conflicts who were taken prisoner or held captive after 5 April 1917.  The POW Medal is to be issued only to those U.S. military personnel and other personnel granted creditable U.S. military service who were taken prisoner and held captive:

* while engaged in an action against an enemy of the United States
* while engaged in military operations involving conflict with an opposing foreign force
* while serving with friendly forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party
* by foreign armed forces that are hostile to the United States, under circumstances which the Secretary concerned finds to have been comparable to those under which persons have generally been held captive by enemy armed forces during periods of armed conflict

12.  Army Regulation 600-8-22 states 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 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.

13.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing discharge documents.  It directs that, in the case of prisoners of war, the unit of assignment, country, and dates of capture and release will be entered in the "Remarks" section of the discharge document.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to award of the Purple Heart because he was wounded by the enemy has been carefully reviewed.

2.  There is no evidence in the available records and the applicant has not provided sufficient evidence that shows he sustained injuries as a result of hostile action or that he received treatment for injuries that were sustained as a result of hostile action.  His separation document does not show he was wounded in action and no wounds or injuries were recorded in his Report of Physical Examination prior to his discharge.  Regrettably, there is insufficient evidence available on which to base award of the Purple Heart.

3.  The available evidence clearly shows he was a POW in Germany.  He states he was a POW from 18 December 1944 to 2 May 1945.  The DVA Rating Decision also indicates he was a POW from 18 December 1944 to 2 May 1945.  Therefore, he is entitled to the POW Medal and to have his separation document corrected to show his unit of assignment, country, and dates of capture and release.

4.  The WD AGO Form 53-55 shows he received the Combat Infantryman Badge.  In accordance with the governing regulation, service members who received the Combat Infantryman Badge during World War II were authorized award of the Bronze Star Medal.  As a result, it would be appropriate to award him the Bronze Star Medal and to add this award to his WD AGO Form 53-55.

5.  Evidence shows that the applicant’s records contain administrative errors which do not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD) as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that CMSD administratively correct the records of the individual concerned by: 

	a.  awarding him the Bronze Star Medal based upon award of the Combat Infantryman Badge;

	b.  amending his WD AGO Form 53-55 by adding the Prisoner of War Medal and the Bronze Star Medal; and


	c.  showing his prisoner of war status from 18 December 1944 to 2 May 1945, while in Germany, and assigned to the 422nd Infantry Regiment.




      ___________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)                                         AR20100007947



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ABCMR Record of Proceedings (cont)                                         AR20100007947



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