IN THE CASE OF:	  

		BOARD DATE:	  12 July 2011

		DOCKET NUMBER:  AR20100029801 


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 daughter of a former service member (FSM) to whom the FSM has given general power of attorney, requests correction of the FSM's WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) to show he was awarded the Purple Heart and to show he received wounds in combat.

2.  The applicant states the FSM was wounded on the night of 15-16 November 1944 in Hofen, Germany, while serving as a company runner for Company L, 3d Battalion, 395th Infantry Regiment, 99th Infantry Division.  The incident occurred in the battalion command post and is documented in the book Infantry Soldier – Holding the Line at the Battle of the Bulge.  She states the wound was treated by the battalion surgeon, Caption H____ O____, and for reasons unknown the FSM declined award of the Purple Heart.  The FSM desires the award and documentation thereof so the Department of Veterans Affairs will engrave the words "Purple Heart" on his grave marker.

3.  The applicant provides:

* the FSM's WD AGO Form 53-55
* correspondence between the FSM's nephew and a Member of Congress
* correspondence from the National Personnel Record Center (NPRC) to a Member of Congress
* pages from the book Infantry Soldier – Holding the Line at the Battle of the Bulge
* a General Power of Attorney and Designation of Health Care Surrogate
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 NPRC in 1973.  It is believed the FSM's records were lost or destroyed in that fire.  This case is being considered using the WD AGO Form 53-55 provided by the applicant.

3.  The FSM's WD AGO Form 53-55 shows he entered active service in the Army of the United States on 10 December 1942.  On 10 October 1944, he arrived in the European Theater of Operations where he served until 31 October 1945.  He was honorably discharged on 13 July 1946 after completing 3 years, 7 months, and 12 days of active military service.  This form shows he was assigned to Company L, 395th Infantry Regiment, 99th Infantry Division.

4.  The WD AGO Form 53-55 shows the FSM was awarded the European-African-Middle Eastern (EAME) Theater Ribbon with three bronze service stars, Army Good Conduct Medal, Combat Infantryman Badge (CIB), World War II Victory Medal, American Theater Ribbon, and Distinguished Unit Citation (now called the Presidential Unit Citation).  It does not show award of the Purple Heart and it does not show he received wounds in action.

5.  The Office of the Surgeon General files (commonly referred to as the SGO files), a health record research project, involved transposing hospital admission card data from the periods of World War II and the Korean Conflict onto magnetic tape.  In 1988, the National Research Council made these tape files available to the NPRC.  It was widely believed that these tapes would become a valuable substitute for the records lost in the NPRC fire of 1973.  The best available estimation of the completeness of this project is that it captured at least 95 percent of all combat casualty hospital admissions.

6.  A review of hospital admission data in the SGO files did not reveal any records indicating the FSM was wounded as a result of enemy action.

7.  The pages the applicant provides from the book Infantry Soldier – Holding the Line at the Battle of the Bulge show a Soldier identified as "Foxy" was serving as a company runner when a shell struck the battalion headquarters in the early morning hours of 16 November 1944.  A shell fragment embedded itself in the Soldier's posterior leaving a painful, though not serious, wound.  An Internet search confirmed the book is the author's account of his service in a rifle platoon with the 3rd Battalion, 395th Regiment, 99th Infantry Division.

8.  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.

9.  A review of the FSM's available records indicates entitlement to additional awards, decorations, and campaign credits that are not shown on his WD AGO Form 53-55.

10.  Army Regulation 600-8-22 states the Bronze Star Medal (BSM) is awarded for heroism and for meritorious achievement or service in military operations against an armed enemy.  The BSM 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 CIB or the Combat Medical Badge is considered to be a citation in orders for the BSM.  Therefore, the BSM is to be awarded to individuals who were authorized either badge for service during World War II.

11.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) lists unit awards and occupation credit for World War II.  The 395th Infantry Regiment was cited for award of the Belgian Fourragere.  The unit also received occupation credit for Germany for the period 2 May to 4 September 1945.

12.  Army Regulation 600-8-22 states the Belgian Fourragere may be awarded by the Belgian Government when a unit has been cited twice in the Order of the Day of the Belgian Army.  The award of the Fourragere is not automatic but must be by specific decree of the Belgian Government.

13.  Army Regulation 600-8-22 states that qualifying service must have occurred between 9 May 1945 and 5 May 1955 for award of the Army of Occupation Medal with Germany Clasp.  Service between 9 May 1945 and 8 November 1945 will be counted only if the EAME Campaign Medal was awarded for service before 9 May 1945.

DISCUSSION AND CONCLUSIONS:

1.  To award the Purple Heart requires substantiating evidence verifying a wound was the result of hostile action, required treatment by medical personnel, and the medical treatment was made a matter of official record.

2.  Unfortunately, the only documentary evidence of an injury available in this case is a nonfiction account of the 395th Infantry Regiment's service in the Battle of the Bulge that appears to have been written well after the fact.  There is no apparent reason to doubt the veracity of this book; however, the FSM is not clearly identifiable as the Soldier described in the pages the applicant has provided.  Even if the FSM were clearly identified in this account, it does not constitute an official record of the FSM's injuries.

3.  In the absence of any additional documentation substantiating the FSM was wounded as a result of enemy action, that his wound required treatment by medical personnel, and that such treatment was made a matter of official record, there is insufficient basis upon which to award the Purple Heart.

4.  The FSM was awarded the CIB which entitles him to award of the BSM.  He is entitled to correction of his record to show this award.

5.  The FSM's unit was cited for award of the Belgian Fourragere.  Therefore, he is entitled to correction of his record to show this unit citation.

6.  The FSM was awarded the EAME Theater Ribbon (later called the EAME Campaign Medal) for service prior to 9 May 1945 and his unit was awarded occupation credit for Germany.  Therefore, he is entitled to correction of his record to show the Army of Occupation Medal with Germany Clasp.



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 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 administratively correct the records of the FSM by awarding him the Bronze Star Medal based upon award of the Combat Infantryman Badge and adding the Bronze Star Medal, Army of Occupation Medal with Germany Clasp, and Belgian Fourragere to item 33 (Decorations and Citations) of his WD AGO Form 53-55.

3.  The Board wants the applicant, the FSM, and all others concerned to know this action in no way diminishes the sacrifices the FSM made in service to our Nation.  The FSM 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)                                         AR20100029801



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ABCMR Record of Proceedings (cont)                                         AR20100029801



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