IN THE CASE OF:	  

		BOARD DATE:	    12 January 2011

		DOCKET NUMBER:  AR20100017841 


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 that the records of her deceased husband, a former service member, be corrected by adding the Silver Star (SS) and Purple Heart (PH).  

2.  The applicant states the FSM is eligible for the PH he refused and for the SS referred to by the FSM in his journal.  

3.  The applicant provides the following documents in support of the application:

* FSM’s Journal 
* Counsel Statement 
* FSM Death Certificate 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the FSM’s record be corrected by adding the SS and PH.  

2.  Counsel states the FSM’s record should be corrected,  if for nothing else, to give the applicant some closure in her life.  He states the applicant is in her 80’s and has the right to have this.  He states the applicant has received the FSM’s medals from the Department of the Army, but the SS and PH have been out of reach.  

3.  Counsel provides a statement in support of the 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 FSM's military record is not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the FSM's records were lost or destroyed in that fire.  This case is being considered using reconstructed records maintained at the NPRC which include the FSM's Enlisted Record separation document, Honorable Discharge Certificate, Office of The Surgeon General (OTSG) Hospital Admission Record and miscellaneous documents, along with the documents submitted by the applicant.  

3.  The FSM’s enlisted record separation document shows he was inducted into the Army at Fort Devens, Massachusetts and entered active duty on 7 February 1942.  The document also shows he served in the European Theater of Operations (ETO) from 8 June 1943 through 26 September 1944, and participated in the Naples-Foggia, Rome-Arno, Sicily, and Southern France campaigns of World War II.  It also shows that during his active duty tenure, he earned the European-African-Middle Eastern Campaign Medal with 4 bronze service stars, Combat Infantryman Badge and Army Good Conduct Medal.  There is no entry in the block identifying wounds or other injuries received in action.  

4.  There are no documents in the NPRC file that indicate the FSM was ever wounded in action or treated for a combat-related wound by military medical personnel, or that he was ever awarded the PH and/or SS by proper authority while serving on active duty. 

5.  The NPRC file contains an OTSG Hospital Admission Record that shows the FSM was admitted to a military medical treatment facility at Fort Devens, Massachusetts in November 1944, and was treated for psychoneurosis, anxiety for 17 days.  
6.  The enlisted record separation document and the FSM’s honorable discharge certificate show that on 25 November 1944, he was honorably separated from active duty, in the rank of sergeant, after completing 2 years, 9 months, and 
19 days of active military service.  

7.  The applicant provides a journal maintained by the FSM while he was serving in the ETO.  She marks a passage in the journal in which the FSM indicated he and 3 other fellows were recommended for the SS.  She also marks another passage in which the FSM indicated he was cut when he was hitting the ground during an enemy aerial attack; however, he confirms he refused aid and failed to report it. 

8.  Army Regulation 600-8-22 (Military Awards) contains the Army’s awards policy.  Paragraph 2-8 contains guidance on the PH.  It states in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action; that it required treatment by military medical personnel; and a record of the medical treatment must have been made a matter of official record.  

9.  Army Regulation 600-8-22, paragraph 3-10 contains guidance on the SS.  It states, in pertinent part, that it is awarded to individuals who are cited for gallantry in action against an enemy of the United States while engaged in military operations involving conflict with an opposing foreign force, or while serving with friendly foreign forces engaged in armed conflict against an opposing armed force in which the United States is not a belligerent party.  The required gallantry, while of a lesser degree than that required for the Distinguished Service Cross, must nevertheless have been performed with marked distinction.  The SS must be formally recommended and approved by the appropriate award approval authority.  

10.  Army Regulation 600-8-22, paragraph 3-14d (2) authorizes the Bronze Star Medal (BSM) to members who, after 6 December 1941, were been cited in orders or awarded a certificate for exemplary conduct in ground combat against an armed enemy between 7 December 1941 and 2 September 1945, inclusive, or whose meritorious achievement has been otherwise confirmed by documents executed prior to 1 July 1947.  For this purpose, an award of the Combat Infantryman Badge (CIB) or Combat Medical Badge is considered as a citation in orders.  


CONCLUSIONS:

1.  The applicant’s contention that the FSM is eligible for the PH and SS has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  Notwithstanding the comments contained in the FSM’s journal, there is no documentary evidence indicating the FSM was ever formally recommended for or awarded the SS by proper authority while serving on active duty.  As a result, there is an insufficient evidentiary basis to support adding this award to his record.  

3.  By regulation, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action; that it required treatment by military medical personnel; and a record of the medical treatment must have been made a matter of official record.  The available evidence fails to show the applicant was ever treated for a combat related wound by military medical personnel.  Further, the comments in the FSM’s journal confirm he refused aid and never received treatment for the cut he received during an enemy air attack, which itself confirms the wound did not require treatment from military medical personnel.  As a result, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case. 

4.  The applicant and all others concerned should know this action related to award of the PH and SS in no way diminishes the sacrifices made by the FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of the FSM's service in arms.

5.  By regulation, members who received the CIB during World War II are entitled to the BSM.  Given the FSM received the CIB during WWI, it would appropriate to award him the BSM for his exemplary conduct in ground combat against an armed enemy in the ETO between 8 June 1943 and 26 September 1944, and to add this award to his enlisted record and separation document.  

6.  Award of the BSM based on receipt of the CIB is an administrative action that does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Army Review Boards Agency (ARBA) 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 related to award of the Silver Star and Purple Heart.  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 an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the ARBA CMSD administratively correct the records of the individual concerned to show award of the Bronze Star Medal based on receipt of the Combat Infantryman Badge during World War II. 




      __________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)                                         AR20100017841



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ABCMR Record of Proceedings (cont)                                         AR20100017841



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