IN THE CASE OF:	  

		BOARD DATE:	    8 March 2011

		DOCKET NUMBER:  AR20100021414 


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 Army of Occupation Medal, Combat Infantryman Badge, and the Purple Heart, and to correct his service dates.

2.  The applicant states, in effect, in August 1997 he requested a copy of his WD AGO Form 53-55 and medical records and subsequently received his WD AGO Form 53-55.  He further states he also received a notice saying all of his records, along with his WD AGO Form 53-55, were destroyed in a fire and his records were reconstructed.  He further states the following blocks of his reconstructed WD AGO Form 53-55 are incorrect as follows:

* Block 7 (Date of Separation) should show "29 March 1947" vice "29 March 1946"
* Block 10 (Date of Birth (DOB)) should show "21 September 1920" vice "21 September 1921"
* Block 22 (Date of Induction) should show "13 July 1943" vice "13 July 1944"
* Block 24 (Date of Entry into Active Service) should show "13 July 1943" vice "13 July 1944"
* Block 31 (Military Qualification and Date) should show "2 September 1943" vice "2 September 1944"
* Block 33 (Decorations and Citations) should include the Army of Occupation Medal, Combat Infantryman Badge, and the Purple Heart
* Block 34 (Wounds Received in Action) should show "broken back and cracked vertebra"
* Block 36 (Service Outside Continental U.S. and Return) Date of Departure should show "26 December 1943" and "15 March 1947" vice "26 December 1944" and "15 March 1946"
* Block 36 Date of Arrival should show "9 January 1944" and "25 March 1947" vice "9 January 1944" and "25 March 1946"
* Block 37 (Total Length of Service) Continental Service should show "5 months and 15 days" vice "5 months and 17 days"
* Block 37 (Foreign Service) should show "3 years, 3 months, and 3 days" vice "1 year and 3 months"
* Block 50 (Effective Date of Allotment Discontinuance) should show "31 March 1947" vice "31 March 1946"
* Block 51 (Date of Next Premium Due) should show "30 April 1947" vice "30 April 1946."

3.  The applicant provides:

* his WD AGO Form 53-55
* a self-authored statement
* a National Archives (NA) Form 13045 (Informal Information Reply)

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 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 reconstructed record contains a copy of his original WD AGO Form 53-55.  His records show he was inducted into the Army of the United States on 13 July 1944 and he held military occupational specialty (MOS) 745 (Rifleman) and 055 (General Clerk).  His DOB is listed as 21 September 1921.

4.  On 13 July 1944, he underwent a physical examination in conjunction with his induction.  A DSS Form 221 (Report of Physical Examination and Induction), dated 13 July 1944, shows his DOB as 21 September 1921.  He authenticated this form by placing his signature in the appropriate block.

5.  On 9 February 1945, he was admitted to the 27th Evacuation Hospital, France, for mouth pain.  His dentures were repaired and he was returned to duty on 14 February 1945.

6.  On 12 March 1945, he was treated at the 5th Evacuation Hospital, Germany for possible pleurisy and chronic neuralgia, cause undetermined.  His records indicate the onset of his medical problem occurred on or about 15 January 1945 while he was in Belgium.  His unit is listed as the 112th Infantry Regiment. 

7.  On 17 March 1945, he was admitted to the 194th General Hospital, France.  A Form 55A-1 (Abbreviated Clinical Record) states, in part, he (the applicant) has had pain in spine for 4 - 5 months, he was sent to the 27th Evacuation Hospital for 10 days on 31 January 1945, went on convalescent leave, and returned to duty on 27 February 1945.  He carried a 50 pound backpack and his back began to hurt more severely.  On 27 March 1945, the final diagnosis was listed as chronic spondylitis (inflammation of the vertebrae) and he was returned to duty with limited assignment.  The doctor recommended no lifting and that the applicant should be given a job in a fixed installation protected from the influences of weather. 

8.  On 22 May 1945, he was treated at the 51st Evacuation Hospital, Helsheim, Germany for lower back pain.  His unit is listed as the 41st Traffic Control Regiment.

9.  Block 11 (List all significant diseases, wounds, and injuries) of his WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty or Retirement), dated 29 March 1946, shows the entry "No malaria or dysentery; back injury two times - last March 1945, 196th [sic] 194th General Hospital, France, 3 weeks."

10.  On 29 March 1946, he was honorably discharged.  The WD AGO Form
53-55 he was issued shows the following entries:

* Block 7 shows 29 March 1946
* Block 10 shows 21 September 1921
* Block 22 shows 13 July 1944
* Block 24 shows 13 July 1944
* Block 31 shows 2 September 1944
* Block 32 (Battles and Campaigns) shows the Ardennes, Central Europe, and Rhineland campaigns
* Block 33 shows the European-African-Middle Eastern Campaign Medal, Army Good Conduct Medal, and the World War II Victory Medal
* Block 34 shows None
* Block 36 shows departure dates of 26 December 1944 and 15 March 1946
* Block 36 shows arrival dates of 9 January 1944 and 25 March 1946
* Block 37 shows "5 months and 17 days"
* Block 37 shows "1 year and 3 months"
* Block 50 shows 31 March 1946
* Block 51 shows 30 April 1946

11.  The applicant authenticated this form by placing his signature in the appropriate block.

12.  In a self-authored statement the applicant states, in part, he was awarded the Combat Infantryman Badge while assigned to the 112th Infantry Regiment.  He further states he qualified for the Purple Heart when he was escorting a German prisoner of war and the prisoner set off explosives.  The shrapnel and debris knocked down him down, he was transported to an Army hospital in France where he stayed for 4 months, and he was treated for a broken back and cracked vertebra.

13.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) was published to assist commanders and personnel officers in determining or establishing the eligibility of individual members for campaign participation credit, assault landing credit, unit citation emblems, and occupation duty for World War II.  This pamphlet shows the:

* 112th Infantry Regiment received occupation credit for Germany during the period 2 May - 27 July 1945
* 41st Traffic Control Regiment received occupation credit for Germany during the period 2 May - 31 October 1945


14.  Army Regulation 600-8-22 (Military Awards) states that for award of the Army of Occupation Medal with Germany Clasp qualifying service must have occurred between 9 May 1945 and 5 May 1955.  Service between 9 May 1945 and 8 November 1945 will be counted only if the European-African-Middle Eastern Campaign Medal was awarded for service before 9 May 1945.  

15.  War Department Circular Number 408, dated 17 October 1944 and effective 1 November 1944, restricted award of the Combat Infantryman Badge to officers, warrant officers, and enlisted men assigned to infantry regiments, infantry battalions, and elements thereof designated as infantry.  Personnel whose eligibility was thus established could qualify for award of the Combat Infantryman Badge by satisfactory performance of duty in ground combat against the enemy.  Announcement of the award of the Combat Infantryman Badge would be made in regimental or unit orders.

16.  Army Regulation 600-8-22 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.

17.  Army Regulation 600-8-22, paragraph 5-3, contains the regulatory guidance on the European-African-Middle Eastern Campaign Medal.  It states, in pertinent part, that a bronze service star is authorized with this award for each campaign a member is credited with participating in.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant served with the 112th Infantry Regiment and the 41st Traffic Control Regiment during his service in European Theater of Operations (ETO) in Germany.  Both units received occupation credit for Germany from 2 May 1945 - 27 July/31 October 1945, respectively.  Therefore, he entitled to the Army of Occupation Medal with Germany Clasp and correction of his WD AGO Form 53-55 to show this award.

2.  Various documents contained in his reconstructed record shows he entered active duty on 13 July 1944 and he was discharged on 29 March 1946, and lists his DOB as 21 September 1921.  In the absence of evidence to the contrary, it is presumed the WD AGO Form 53-55 he was issued upon his discharge contains the correct date he entered active duty, date he was discharged, and his DOB.  Therefore, he is not entitled to correction of these items on his WD AGO Form 53-55.

3.  With respect to the Combat Infantryman Badge, his infantry MOS for part of his service in Europe in World War II is not in question.  However, there is no evidence in his reconstructed record and he did not submit any substantiating evidence that shows he was awarded the Combat Infantryman Badge or that he participated in active ground combat while assigned to an infantry unit.

4.  In the absence of official orders or other documentary evidence, such as operation reports, after action reports, valor awards, witness statements, or any others evidence that conclusively shows he participated in active ground combat while assigned to an infantry unit, there is insufficient evidence upon which to base award of the Combat Infantryman Badge in this case.

5.  With respect to the Purple Heart, the criteria for award of the Purple Heart requires the submission of substantiating evidence 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.  The applicant's record shows he was treated for a back injury while in Europe during World War II.  However, there is no evidence that shows he received this injury as a result of hostile action.  Therefore, there is insufficient evidence upon which to base award of the Purple Heart in this case.

6.  The applicant participated in three campaign phases during his service in the ETO.  Therefore, he is entitled to three bronze service stars for wear on his already-awarded European-African-Middle Eastern Campaign Medal.

7.  Nevertheless, 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  __X_____  __X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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. deleting from item 33 of his WD AGO Form 53-55 the European-African-Middle Eastern Campaign Medal; and

	b.  adding to item 33 of his WD AGO Form 53-55 the European-African-Middle Eastern Campaign Medal with three bronze service stars and the Army of Occupation Medal with Germany Clasp.

2.  The Board further determined 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 correcting his service dates, date of birth, wounds received in action entry, and adding the Combat Infantryman Badge and the Purple Heart to his WD AGO Form 53-55.



      _________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)                                         AR20100021414



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ABCMR Record of Proceedings (cont)                                         AR20100021414



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