IN THE CASE OF:	  

		BOARD DATE:	  25 August 2011

		DOCKET NUMBER:  AR20110004661 


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 son of a deceased former service member (FSM), requests award of the Purple Heart for injuries his father sustained in World War II (WWII), and correction of the FSM's WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge) to show this award.  

2.  As a secondary issue, the applicant requests correction of the FSM's WD AGO Form 53-55 to show award of the:

* Rome Liberation Medal (commemorative medal)
* World War II Victory Medal
* Army of Occupation Medal with Germany Clasp
* Presidential Unit Citation

3.  The applicant states, in effect, that the FSM was severely injured in combat on 29 December 1943, in Salerno, Italy, and was evacuated to the                  11th Evacuation Hospital for treatment.

4.  The applicant provides:

* 2 self-authored statements
* the applicant's State of Missouri Birth Certificate
* the FSM's State of Missouri Certification of Death
* the FSM's WD AGO Form 53-55 
* the FSM's Army of the United States Honorable Discharge certificate
* 6-page "Roster of Groups for Landing at Salerno"
* 11-page extract documenting the unit history during the period                  2 December 1943 through 31 December 1943
* letter of congratulations to the men of the 36th Infantry Division, dated    16 June 1944
* proclamation from the Governor of Texas, dated 29 May 1995
* 2-page, FSM-authored statement, dated 22 April 2002
* a newspaper article from the Neighbors section of The Joblin Globe, dated 6 June 2002, titled "Missing – WWII Vet has scars, but still no Purple Heart" 
* a newspaper article of unknown date and origin, titled "The Romance"
* the FSM's biographical information, contained within the Carthage R-9 School District Board of Education Meeting minutes, dated 15 April 2002
* a black-and-white photograph of Mount Vesuvius, Naples, Italy

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 complete military records are not available for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed his records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.

3.  With respect to the issuance of commemorative medals, most commemorative medals are not officially recognized.  Title 32, Code of Federal Regulations, Part 578 lists and discusses all official US military decorations, medals, ribbons, and similar devices; commemorative medals are not listed as official.  Army Regulation 600-8-22 (Military Awards) provides that such medals may not be shown on the DD Form 214, or in the FSM's case, the WD AGO Form 53-55.  In addition, Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia) prohibits the wear of commemorative medals.  Some commemorative medals are authorized by the United States Congress and minted by the U.S. Mint; however, the award of such medals is not governed by the provisions of Army Regulation 600-8-22 and, as a result, may not be shown on a discharge document. 

4.  The FSM enlisted into the Army of the United States, entered active duty on   8 August 1941, and was released from active duty on 31 October 1945.  His      WD AGO Form 53-55 shows that at the time of his discharge, he held a Labor Foreman military occupational specialty and was assigned to the 36th Cavalry Reconnaissance Troop of the 36th Infantry Division.

   a. Item 32 (Battles and Campaigns) shows he participated in the Tunisia, Naples – Foggia, Rome – Arne, and Northern Appennines campaigns during WWII.

   b. Item 33 (Decorations and Citations) shows he was awarded the:

* Army Good Conduct Medal
* American Defense Service Medal
* American Theater Service Medal (also known as the American Campaign Medal)
* European-African-Middle Eastern Campaign Medal with 4 bronze service stars

   c. Item 34 (Wounds Received in Action) is void of any entry.

   d. Item 36 (Service Outside Continental U.S. and Return) shows he departed the U.S. enroute to the European Theater of Operations (ETO) on 2 April 1943 and arrived on 13 April 1943.  On 7 October 1945, he departed the ETO, enroute to the U.S., where he arrived on 26 October 1945.

   e. Item 37 (Total Length of Service) shows he completed 1 year, 7 months, and 28 days of continental service, and 2 years, 6 months, and 25 days of foreign service.

5.  The FSM's medical records are not available for review, and his available personnel record is void of any documentation that references combat wounds or injuries incurred or treated during his service in WWII.  

6.  In response to the FSM's direct correspondence with U.S. Presidents Carter and Reagan, senior Department of the Army officials provided the FSM with documentation which confirmed his entitlement to the Presidential Unit Citation, based on his assignment to the 36th Cavalry Reconnaissance Troop. 

7.  The applicant provides:

   a. A 6-page "Roster of Groups for Landing at Salerno," of unknown origin that identifies the FSM as a motorcycle operator who arrived at Salerno 10 days after the invasion commenced.

   b. 11-page extract documenting the unit history during the period                  2 December 1943 through 31 December 1943 that contains the entry, "The morning of 29 December 1943, messenger on motorcycle… was injured seriously, and sent to 11th Evacuation Hospital and then on to a General Hospital." The cause of the injury, or a direct link to enemy action, is not contained within the document. 

   c. A letter of congratulations to the men of the 36th Infantry Division, from the Commanding General, dated 16 June 1944, in which he congratulates the men of the 36th Infantry Division on their numerous accomplishments in combat operations on the European continent.  

   d. A proclamation from the Honorable George W. Bush, Governor of the State of Texas, dated 29 May 1995, which proclaims the date 9 September 1995 as "36th Division Day," in honor of the Division's achievements in Europe during WWII.  

   e. A 2-page statement, dated 22 April 2002, authored by the FSM, in which he relates the events as he recalls they occurred in Italy, in 1944, resulting in his face and hands being burned following a fire and multiple explosions, as well as the treatment he received afterward.

   f. A newspaper article from the Neighbors section of The Joblin Globe, an unofficial source dated 6 June 2002, titled "Missing – WWII Vet has scars, but still no Purple Heart."  This article chronicles the FSM's service in WWII, and his injuries, which have yet to be officially recognized through his award of the Purple Heart.  

8.  The Purple Heart was established by General George Washington at Newburgh, NY on 7 August 1782, during the Revolutionary War.  In 1932, it was reestablished by the President of the United States, per War Department General Orders Number 3.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action.  

9.  Army Regulation 600-8-22 provides, in pertinent part, that 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 must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

10.  Army Regulation 600-8-22 provides, in pertinent part, that the WWII Victory Medal is awarded for service between 7 December 1941 and 31 December 1946, both dates inclusive.

11.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) shows WWII units that are authorized occupation credit and, therefore, entitlement to the Army of Occupation Medal.

12.  Army Regulation 600-8-22 provides, in pertinent part, that the Army of Occupation Medal is awarded for qualifying service in Germany 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.  Paragraph 5-11b(1) states that Soldiers who served in the European Theater during the occupation of Europe will wear the Clasp inscribed "Germany" on their Army of Occupation Medal.  

13.  Army Regulation 600-8-22 provides, in pertinent part, that the Presidential Unit Citation (known as the Distinguished Unit Citation until 3 November 1966) is awarded for extraordinary heroism in action.  A unit must display such gallantry, determination and esprit de corps in accomplishing its mission as would warrant award of the Distinguished Service Cross to an individual.

DISCUSSION AND CONCLUSIONS:

1.  The FSM served a qualifying period of service for award of the WWII Victory Medal; therefore, the applicant is entitled to correction of the FSM's WD AGO Form 53-55 to show this award.

2.  The FSM served a qualifying period of service for award of the Army of Occupation Medal with Germany Clasp; therefore, the applicant is entitled to correction of the FSM's WD AGO Form 53-55 to show this unit award.

3.  The evidence of record shows the FSM was assigned to the 36th Cavalry Reconnaissance Troop of the 36th Infantry Division during his service in WWII.  The evidence further shows that members of the FSM's unit were attached to the 3rd Battalion of the 141st Infantry Regiment, which received the Presidential Unit Citation for outstanding performance of duty against the enemy on 9 September 1943, during the invasion of Italy.  While the available record is void of any documentation specifically linking the FSM to the 3rd Battalion, 141st Infantry Regiment, he nonetheless was, informed by senior Department of the Army personnel, on behalf of the White House, that he was entitled to award of the Presidential Unit Citation.  Therefore, he is entitled to the Presidential Unit Citation, and to correction of his WD AGO Form 53-55 to show this unit award.

4.  With respect to the Purple Heart, the criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify the wound or injury was the result of hostile action, the wound or injury must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

5.  The FSM's available record is void of any documentation that references combat wounds or injuries incurred or treated during his service in WWII, or any orders that show he was previously awarded the Purple Heart.  Additionally, the documents submitted by the applicant allude to an injury sustained by the FSM during his service in WWII, but they lack a definitive link that shows they resulted from enemy action, or during direct combat operations.  

6.  Notwithstanding the applicant's sincerity, in the absence of additional documentation that conclusively shows his father's wounds were the result of hostile action, or incurred during enemy engagement, there is, regrettably, an insufficient basis for awarding him the Purple Heart.

7.  The Rome Liberation Medal is a commemorative medal that is not officially recognized and is not governed by the provisions of Army Regulation 600-8-22; therefore, it may not be shown on a discharge document.  Accordingly, the applicant is not entitled to correction of the FSM's WD AGO Form 53-55 to show this award.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  ____X___  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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 amending item 33 of the FSM's WD AGO Form 53-55 to add the WWII Victory Medal, the Army of Occupation Medal with Germany Clasp, and the Presidential Unit Citation.  

2.  The Board further determined that 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 award of the Purple Heart and the Rome Liberation Medal.




      _______ _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)                                         AR20090012380



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