IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100009712 


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, the widow of a deceased former service member (FSM), requests award of the Purple Heart.

2.  The applicant states:

* the FSM was wounded on 27 February 1945 due to enemy action
* he was assigned to the 106th Division in Germany during the Battle of the Bulge
* he was medically treated for his wounds and he continued to have back problems throughout his Army career and thereafter
* he never received a Purple Heart for his combat wound and he should be awarded the Purple Heart for his enemy inflicted injury

3.  The applicant provides copies of the following documents:

* her Certificate of Marriage
* a letter to the Commander, Army Reserve Personnel Center (ARPERCEN), dated 6 June 1996
* a letter to the Commander, ARPERCEN, dated 16 March 1998
* a letter to ARPERCEN, ATTN: Veterans Support Branch, dated 4 August 1998
* a Western Union Telegram, dated 23 March 1945
* 
the FSM's Certificate of Death
* the FSM's WD AGO Form 53-55 (Enlisted Record and Report of Separation) for the period ending 13 October 1945
* the FSM's WD AGO Form 53-55 for the period ending 1 April 1949
* the FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 30 April 1960
* the FSM's DD Form 215 (Correction to DD Form 214), dated 3 November 1970
* a Letter of Appreciation to the FSM, dated 21 April 1960
* Headquarters, Department of the Army (HQDA), Special Orders Number 60, dated 25 March 1960
* an AGPZ Form 27 (Statement of Service - Enlisted Personnel - Retirement), dated 17 March 1960
* a DD Form 424 (Certification of Information for Retirement Pay), dated
25 March 1960
* a DD Form 210 (Application for Retirement), dated 5 January 1960
* an HQDA letter, Subject: Retirement, dated 25 March 1960

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.  After completing 1 year, 3 months, and 14 days of prior active service, the FSM enlisted in the Regular Army on 11 February 1941 and he was awarded military occupational specialty (MOS) 409 (medical technician).

3.  The FSM's records show he arrived in England on 28 October 1944, then in France on 6 December 1944, and finally in Germany on 11 December 1944.  He was assigned to the Medical Detachment, 424th Infantry Regiment, 106th Infantry Division.

4.  A WD AGO Form 0365-1 (War Department - The Adjutant General's Office -Battle Casualty Report), dated 9 March 1945 shows the FSM was slightly injured on 27 February 1945 while he was in Germany serving in the rank and pay grade of technician four.

5.  On 23 March 1945, the applicant received a Western Union Telegram notifying her that the FSM had been slightly injured on 27 February 1945, while he was in Germany.

6.  A second WD AGO Form 0365-1, undated, shows the FSM was returned to duty on 3 April 1945 after he was injured in the European Theater of Operations on 27 February 1945.

7.  A Temporary Service Record, initiated at the 4102 U.S. Army Hospital Plant, England, shows the FSM was transferred to the 10th Replacement Depot, England, on 3 April 1945 with a physical profile of limited duty.  The record shows that he was physically able to perform any duty except combat because of emotional instability and that he was on furlough from 4 April 1945 to 10 April 1945.  He rejoined the 10th Replacement Depot on 11 April 1945 and he was subsequently assigned to the 285th Medical Detachment.

8.  An entry made in the FSM's Service Record describes his injury as a concussion.

9.  The FSM returned to the continental United States on 7 October 45.  He was honorably discharged on 13 October 1945 for the convenience of the government, due to demobilization.

10.  Item 33 (Decorations and Citations) of the FSM's WD AGO Form 53-55 for the period ending 13 October 1945 shows the following awards:

* "European-African-Middle Eastern Service Ribbon"
* Army Good Conduct Medal
* Combat Medical Badge
* Expert Marksmanship Qualification Badge with Rifle Bar
* Marksman Marksmanship Qualification Badge with Carbine Bar
* Lapel Button

11.  Item 32 (Battles and Campaigns) of the same WD AGO Form 53-55 shows he participated in the following campaigns:

* Ardennes
* Rhineland

12.  After a series of enlistments/reenlistments the FSM retired from the Army on 30 April 1960.

13.  The applicant submits copies of letters she sent to ARPERCEN requesting award of the Purple Heart to the FSM.  Aside from the Certificate of Marriage and Certificate of Death, all of the other documents she submitted are copies of documents contained in the FSM's official military personnel record.

14.  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.  Paragraph 2-8e provides that a wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions listed in paragraph 2-8 of this regulation.  A physical lesion is not required; however, the wounds or injuries for which the award is made must have required treatment by medical personnel and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.  Paragraph 2-8g(5) provides that concussion injuries caused as a result of enemy-generated explosions clearly justify award of the Purple Heart.

15.  Army Regulation 600-8-22 states the World War II Victory Medal is awarded for service between 7 December 1941 and 31 December 1946, both dates inclusive.

16.  Army Regulation 600-8-22 states the American Campaign Medal is awarded for qualifying service in the American Theater between 7 December 1941 and 2 March 1946.  Qualifying service for this campaign medal includes permanent assignment outside the continental United States but within the American Theater of Operations, or duty as a crewmember aboard a vessel sailing ocean waters for 30 consecutive or 60 nonconsecutive days, or duty outside the 
continental United States as a passenger or in a temporary duty status for 30 consecutive or 60 nonconsecutive days, or active combat against the enemy and was awarded a combat decoration or furnished a certificate by a corps commander or higher, or service within the continental United States for an aggregate period of one year.

17.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) shows that during the FSM's assignment to the 424th Infantry Regiment, he participated in the following three campaigns:

* Ardennes
* Northern France
* Rhineland

18.  Army Regulation 600-8-22 states, in pertinent part, that one bronze service star will be worn on the European-American-Middle Eastern Campaign Medal for participation in each designated campaign phase.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions concerning award of the Purple Heart have been considered along with the documentation she submitted in support of her application.  After a thorough review of the available evidence it appears the FSM is entitled to award of the Purple Heart as he meets the criteria contained in the applicable regulation.

2.  In accordance with Army Regulation 600-8-22, the wounds or injuries for which the Purple Heart is awarded must have required treatment by medical personnel and records of the medical treatment must have been made a matter of official record.

3.  Concussion injuries caused as a result of enemy-generated explosions justify award of the Purple Heart.  He was hospitalized from 27 February 1945 until he was returned to duty on 3 April 1945.  He had a concussion as a result of his injury on 27 February 1945 and the fact that a WD AGO Form 0365-1, a Battle Casualty Report, was completed indicates the injury the FSM sustained was a result of hostile action by the enemy.

4.  It is reasonable to presume that his injury required treatment by virtue of his being hospitalized for over 1 month.  Therefore, the FSM should be posthumously awarded the Purple Heart and his WD AGO Form 53-55 for the period ending 13 October 1945 should be corrected to reflect this award.

5.  The FSM served during a qualifying period for entitlement to the World War II Victory Medal.  Therefore, the FSM's WD AGO 53-55 for the period ending 
13 October 1945 should be corrected to show this award.

6.  The FSM participated in three campaigns while assigned to the 424th Infantry Regiment during World War II.  Therefore, the FSM is entitled to three bronze service stars to be affixed on his already-awarded European-American-Middle Eastern Campaign Medal and correction of his WD AGO Form 53-55 for the period ending 13 October 1945 to show these bronze service stars.

BOARD VOTE:

____X___  __X____  __X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  deleting from item 33 of the FSM's WD AGO Form 53-55 for the period ending 13 October 1945 the "European-African-Middle Eastern Service Ribbon";

	b.  awarding the FSM the Purple Heart (Posthumously) for an injury received in Germany as a result of hostile action on 27 February 1945; and

   c.  adding to item 22 of the FSM's WD AGO Form 53-55 the:

* Purple Heart
* World War II Victory Medal
* American Campaign Medal
* European-American-Middle Eastern Campaign Medal with three bronze service stars



      _________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)                                         AR20100009712



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ABCMR Record of Proceedings (cont)                                         AR20100009712



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