IN THE CASE OF:	  

		BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20100009970


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) to show award of the Purple Heart.

2.  The applicant states:

* he was a member of Company B, 1st Battalion, 85th Infantry Regiment, 10th Mountain Division
* he was injured in April 1945 during fighting on Mount Della Spe, Italy when an artillery round struck his foxhole causing a broken hand
* the Department of Veterans Affairs (DVA) has awarded him service-connected disability for:

* post traumatic stress disorder
* right hand arthritis
* degenerative disc disease of the lumbar spine

3.  The applicant further states the DVA denied service-connected disability for his respiratory problems related to his "Pando Cough" which developed at Camp Hale, near Pando, CO.  He further states he received the Combat Infantryman Badge and the Bronze Star Medal.

4.  The applicant provides a DVA Rating Decision and a copy of his 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 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.  These documents included the applicant's WD AGO Form 53-55 and the History of the 85th Mountain Infantry Regiment - 4 January 1945 to 31 May 1945 by Captain John B. Woodruff, Historical Records Officer, 85th Mountain Infantry.

3.  The applicant was a 19-year old youth when he was inducted into the Army of the United States (AUS) on 8 June 1943.  He was assigned to the 85th Infantry Regiment, which was activated on 15 July 1943 at Camp Hale, CO and became part of the 10th Mountain Division.  

4.  The applicant's WD AGO Form 53-55 shows, in addition to his affiliation with the 85th Mountain Infantry Regiment:

* he was an infantryman and a machine gunner
* he was awarded the following badges:

* 2nd Class Gunner Badge for the Light Machine Gun (LMG)
* Sharpshooter Marksmanship Qualification Badge for Rifle and Carbine
* Combat Infantryman Badge

* he received campaign credit for the Northern Apennines and Po Valley
* he received the following awards as noted in item 31 (Military Qualification and Date) and item 33 (Decorations and Citations):

* American Service Medal
* European-African-Middle Eastern Campaign Medal
* World War II Victory Medal
* Army Good Conduct Medal
* Combat Infantryman Badge
* Sharpshooter Marksmanship Qualification Badge with Carbine and Rifle Bars
* 2nd Class Gunner [[Marksman Marksmanship Qualification Badge] with Machinegun Bar

* he served 2 years, 7 months, and 17 days total active service

* he served 2 years and 10 months in the continental United States
* he served 7 months and 7 days of foreign service (in Italy)

* he was not wounded in action (Block 34 (Wounds Received in Action) contains the entry "None")

5.  Army Regulation 600-8-22 (Military Awards) sets forth Department of the Army criteria, policy, and instructions concerning individual military awards, the Army Good Conduct Medal, service medals and service ribbons, combat and special skill badges and tabs, unit decorations, and trophies and similar devices awarded in recognition of accomplishments.  It provides:

	a.  The Bronze Star Medal (BSM) 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 (formerly known as bronze battle stars) based on qualifying service for each campaign listed in appendix B of this regulation is authorized to be worn on the appropriate service medal.  Participation in the Northern Apennines and Po Valley Campaigns entitles the applicant to wear two bronze service stars on his already-awarded European-African-Middle Eastern Campaign Medal.

	c.  The Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound required treatment by medical personnel, and the medical treatment was made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests award of the Purple Heart.  He states his hand was broken as the result of German artillery bombardment during the Mount Della Spe battle in northern Italy in April 1945.  He provides a DVA Rating Decision showing he was given service-connection for right hand arthritis.

2.  Unfortunately, eligibility for award of the Purple Heart in this case cannot be determined based on the scant evidence of record.  While there is ample proof the applicant was a member of the 85th Mountain Infantry Regiment, 10th Mountain Division and he participated in the 10th Division campaign in Italy, there is no proof the applicant was wounded in action.  Personnel and medical records are not available for review with this case.  The only document available, his WD AGO Form 53-55, clearly states in Block 34 the word "None."  While the sincerity of the applicant’s statements regarding his request for the Purple Heart is not questioned, there simply is insufficient evidence to support the award.

3.  The applicant's statement that he has a Combat Infantryman Badge and a Bronze Star Medal is noted.  However, while the Combat Infantryman Badge is properly noted on his WD AGO Form 53-55, there is no entry for the Bronze Star Medal [based on award of the Combat infantryman Badge].  Therefore, the Bronze Star Medal should be administratively added to his WD AGO Form 53-55.

4.  It is also noted that the applicant participated in two bitter and hard fought campaigns in Italy, yet his European-African-Middle Eastern Campaign Medal 
does not reflect those campaigns with the addition of two bronze service (battle) stars.  Therefore, two bronze service stars should be administratively added to his already-awarded European-African-Middle Eastern Campaign Medal his WD AGO Form 53-55.


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 errors in the records of the individual concerned should be corrected.  Therefore, the Board requests that the Case Management Division - Arlington administratively correct the records of the individual concerned by adding to item 33 of his WD AGO Form 53-55 the Bronze Star Medal and the European-African-Middle Eastern Campaign Medal with two bronze service stars.

3.  The Board wants the applicant and all others concerned to know that this action 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.



      _________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)                                         AR20100009970



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ABCMR Record of Proceedings (cont)                                         AR20100009970



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