IN THE CASE OF:	  

		BOARD DATE:	  15 March 2012

		DOCKET NUMBER:  AR20110016902 


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:

The applicant, the spouse of a deceased former service member (FSM), defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Through a Member of Congress, counsel requests reconsideration of the applicant's previous request for correction of the FSM's record to show he was awarded the Purple Heart and the Silver Star during his service in World War II (WWII).

2.  Counsel states:

* the applicant is not looking to be handed the world on a silver platter, all she wants is the dignity of receiving two military decorations her husband should have been awarded
* the applicant is being offered appeasement in the form of the Bronze Star Medal, which is a slap in the face
* the evidence submitted in the first case came from the FSM's diary
* in WWII, decorations were handed out like candy
* the Board should show compassion and grant the applicant closure by approving her request for her late husband's awards

3.  Counsel provides Army Board for Correction of Military Records (ABCMR) Record of Proceedings, dated 12 January 2011, with allied documents, and a document that details the four points he wishes to appeal.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20100017841 on 12 January 2011.

2.  Neither the applicant nor counsel provided any new evidence; however, counsel submitted a new argument through a Member of Congress which was not previously considered by the Board.  Accordingly, this new argument will now be considered by the Board.

3.  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 the FSM's 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.

4.  The FSM was inducted into the Army of the United States and entered active duty on 7 February 1942.  His record shows he served as a heavy machine gunner and squad leader.

5.  On 25 November 1944, he was honorably discharged in the rank of sergeant/grade 4.  His enlisted service record shows:

	a.  He served in the European theater of operations (ETO) from 8 June 1943 through 26 September 1944.

	b.  He participated in the Naples-Foggia, Rome-Arno, Sicily, and Southern France campaigns during WWII.

	c.  He was awarded the Army Good Conduct Medal, European-African-Middle Eastern Campaign Medal with four bronze service stars, and Combat Infantryman Badge.  It does not indicate he was awarded either the Silver Star or Purple Heart.

6.  The FSM's record contains a WD AGO Form 8-24 (Medical Admission, Diagnoses, and Disposition Form) that shows he was admitted as a patient to the Lovell General and Convalescent Hospital, Fort Devens, MA, from 8 November 1944 to 25 November 1944.  This form characterizes his cause of admission as "psychoneurosis, anxiety state, moderate, situational, combat."

7.  The FSM's record is void of any documentation that references either combat wounds or injuries incurred or treated during his service in WWII or an award of the Purple Heart.  Likewise, it is void of any documentation that references an award of the Silver Star.

8.  On or about 16 May 2011, the FSM's record was corrected to show he received the Bronze Star Medal for meritorious achievement in ground combat against an armed enemy based on his previous award of the Combat Infantryman Badge.

9.  Counsel provides a document in which he appeals four points that arose in ABCMR Docket Number AR20100017841.  Specifically, counsel contends:

	a.  The Board's reference to the unavailability of the FSM's hospital records is false since hospital documents were later referenced in the Record of Proceedings.

	b.  The diary evidence submitted to justify the FSM's award of the Silver Star was sufficient and, although the FSM never followed up on the approval of the award, the applicant still retains the right to it.

	c.  Even though the FSM declined to accept the Purple Heart at the time he was wounded, he still earned it, and since it was "passed out like candy" during the war in Vietnam, there shouldn't be any issues giving it to the FSM now.

	d.  The applicant should have access to any and all records pertaining to her late husband, the FSM.

10.  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.

11.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify 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.

12.  Army Regulation 600-45 (Decorations), which governed the award of Army decorations until 23 August 1951, stated that for the purpose of considering an award of the Purple Heart, a "wound" was defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.

13.  Army Regulation 600-8-22 states the Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

14.  Title 10, U.S. Code, section 1130, provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration.  Based upon such review, the Secretary shall determine the merits of approving the award.

15.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  Commander, U.S. Army Human Resources Command (AHRC-PDP-A), 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  The unit must be clearly identified along with the period of assignment and the recommended award.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request.  The burden and costs for researching and assembling supporting documentation rest with the applicant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of her late husband's record to show he was awarded the Purple Heart and Silver Star during his service in WWII was carefully considered.

2.  Counsel argues four points in his appeal of ABCMR Docket Number 
AR20100017841, dated 12 January 2011.

	a.  Counsel contends that the Board's reference to the unavailability of the FSM's hospital records is false since hospital documents were later referenced in the Record of Proceedings.  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 the FSM's 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.  The ABCMR strives to review each case within the context of the evidence presented.  In this case, the applicant's period of hospitalization has been consistently recognized; however, the cause of his hospitalization is not consistent with the award criteria for the Purple Heart.

	b.  Counsel contends that the FSM's diary submitted to justify the FSM's award of the Silver Star was sufficient and, although the FSM never followed up on the approval of the award, the applicant still retains the right to it.

		(1)  Army Regulation 600-8-22 states the Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Aside from the FSM's personal diary, the available record is void of any evidence that indicates he was previously recommended for or awarded the Silver Star.  In the absence of orders, there is insufficient evidence to correct his records to show award of the Silver Star.

		(2)  While the available evidence is insufficient for awarding the FSM the Silver Star, this in no way affects the applicant’s right to pursue her claim for the Silver Star for the FSM by submitting a request through her Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

	c.  Counsel contends that although the FSM declined to accept the Purple Heart at the time he was wounded, he still earned it, and since it was "passed out like candy" during the war in Vietnam, there shouldn't be any issues in giving it to the FSM now.

		(1)  Army Regulation 600-8-22 states the criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify the Soldier in question was wounded or injured by result of hostile action, the wound or injury required treatment by medical personnel, and the medical treatment was made a matter of official record.

		(2)  The FSM's available record is void of any documentation that references wounds or injuries (as defined by the prevailing Army regulation in effect at the time) resulting from hostile action which either incurred or were treated during his service in WWII or any orders that show he was previously awarded the Purple Heart.

		(3)  His record contains one hospital document that shows he was admitted as a patient to Lovell General and Convalescent Hospital, Fort Devens, MA, from 8 November 1944 to 25 November 1944.  However, he was diagnosed with "psychoneurosis, anxiety state, moderate, situational, combat," which does not meet the governing criteria in effect at the time for classification as a wound for award of the Purple Heart.

		(4)  Regrettably, notwithstanding either the applicant's or counsel's sincerity, in the absence of additional documentation that conclusively shows the FSM's wound or injury was the result of hostile action or incurred during enemy engagement, there is an insufficient basis for awarding him the Purple Heart.

	d.  Counsel contends that the applicant should have access to any and all records pertaining to her late husband, the FSM.  The Board has no issue with this contention.  As the FSM's surviving spouse, the applicant has access to her late husband's records from the National Personnel Records Center in St. Louis, MO, provided proper application is made.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 to amend the decision of the ABCMR set forth in Docket Number AR20100017841, dated 12 January 2011.



      ____________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)                                         AR20110016902



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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