BOARD DATE:	  22 May 2012

		DOCKET NUMBER:  AR20110023218 


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 award of the:

* Combat Infantryman Badge (CIB)
* Bronze Star Medal (BSM)
* Purple Heart (PH) with 1st Oak Leaf Cluster

2.  The applicant states:

	a.  The hospital from which he was discharged did not have the required information.  He served as a private first class in Company E, 423rd Infantry Regiment, 106th Infantry Division, during World War II.  He was twice wounded on 20 December 1944 on separate occasions and in separate locations.  He was then taken prisoner of war (POW) by the German army.  He was liberated by the 6th Armored Division on 19 March 1945.

	b.  He was discharged on 11 September 1945 from Vaughn General Hospital, Hines, IL.  The National Personnel Records Center advised him that his records were destroyed in a fire.  He believes he is entitled to the CIB based on his service in the 106th Infantry Division during the Battle of the Bulge.  It was not listed in his discharge papers from the hospital.  According to Wikipedia, all infantry members who received the CIB were later awarded the BSM.  So he requests award of the BSM.

	c.  He believes he is also entitled to a second award of the PH because he was wounded twice in separate points of his body at different times and at different locations.  They are his lower leg, a muscle injury, and a thigh muscle injury.  He states he is providing a copy of a Department of Veterans Affairs (VA) disability report.

3.  The applicant provides:

* WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge)
* Honorable Discharge Certificate
* VA disability report

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 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 that the applicant's records were lost or destroyed in that fire.  However, a reconstructed record and evidence provided by the applicant contain sufficient documentation for the Board to conduct a fair and impartial review of his case.

3.  The applicant's available military records show he was inducted into the Army of the United States on 16 December 1943 and he entered active duty on 27 December 1943.

4.  He completed training and he was awarded military occupational specialty (MOS) 746 (Automatic Rifleman).  He served in the European theater from 23 October 1944 through 25 April 1945.

5.  He was honorably discharged from active duty on 11 September 1945.  His WD AGO Form 53-55 shows the following entries:

* item 6 (Organization) – Company E, 423rd Infantry, 106th Division
* item 31 (Military Qualification and Date) – "unknown"
* item 33 (Decorations and Citations) – three bronze battle stars, European-African-Middle Eastern Campaign Ribbon, Army Good Conduct Medal (September 1944), PH (217th General Hospital, 9 April 1945)
* item 34 (Wounds Received in Action) – "Wounded in Action, 20 December 1944, in Belgium"

6.  There are no orders in his available service personnel records that show he was awarded the CIB or a second PH.

7.  His available record contains a VA Form P-80b (Award of Disability Pension), dated 2 October 1945, which states:

In accordance with the provisions of Public Number 2 [sic], 73rd Congress, as amended, and the regulations and instructions issued pursuant thereto, you are hereby notified that as a private first class, Company E, 423rd Infantry, 106th Division, who was discharged from the military service of the United States on the 11th day of September 1945, you are hereby awarded pension in the amount of $69.00 per month from September 12, 1945, on account of disability resulting from the following conditions held to have been incurred or aggravated during your war service:  liver condition, result of malnutrition while POW; condition of left thigh and left leg and frozen feet.

8.  On 23 November 1988, the U.S. Army Reserve Personnel Center issued him a POW Medal.

9.  The National Archives and Records Administration World War II POW Data File for the period 7 December 1941 to 19 November 1946 lists the applicant as having been captured by the Germans on 28 January 1945.

10.  He provides a copy of a VA disability report which shows he was awarded a service-connected disability rating of 90 percent for a lower leg muscle injury, thigh muscle injury, and cold injury residuals in addition to other conditions.

11.  War Department Circular 269-1943 established that the CIB was awarded for exemplary conduct in action against the enemy.  War Department Circular 186-1944 further provided that the CIB was to be awarded only to infantrymen serving with infantry units of brigade, regimental, or smaller size.  Additionally, World War II holders of the CIB received a monthly pay supplement known as combat infantry pay.  Soldiers had economic as well as intangible reasons to ensure that their records were correct; therefore, pay records are frequently the best available source to verify entitlement to this award.  The Military Awards Branch of the U.S. Army Human Resources Command has advised in similar cases that during World War II the CIB was normally awarded only to enlisted individuals who served in the following positions:

* light machine gunner (604)
* heavy machine gunner (605)
* platoon sergeant (651)
* squad leader (653)
* rifleman (745)
* automatic rifleman (746)
* heavy weapons noncommissioned officer (812)
* gun crewman (864)

12.  Army Regulation 600-8-22 (Military Award) states the BSM is awarded for heroism and for meritorious achievement or service in military operations against an armed enemy.  The BSM was 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 was considered to be a citation in orders for award of the BSM.  This meant, in effect, that the BSM was to be awarded to individuals who were authorized the CIB for service during World War II.

13.  Section 521a of the National Defense Authorization Act of 1996 authorized award of the PH to any former POW who was wounded before 25 April 1962 while held as a POW or while being taken captive in the same manner as a former POW who was wounded on or after that date.

14.  Army Regulation 600-8-22 states a PH is authorized for the first wound suffered under the above conditions, but an oak leaf cluster would be awarded for each subsequent award.  Not more than one award would be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent.

DISCUSSION AND CONCLUSIONS:

1.  To be entitled to award of the CIB, the evidence must show he held and served in an infantry MOS while assigned or attached to an infantry unit of brigade, regimental, or smaller size and must have served in active ground combat while assigned or attached to this infantry unit.

2.  The evidence of record shows the applicant completed training and was awarded MOS 746 and served in an infantry unit during his period of active service.  However, the CIB is not automatically awarded to a Soldier for being shot at or for undergoing the hazards of day-to-day combat.  Regrettably, lacking sufficient evidence as required by the governing regulation, he is not entitled to the CIB and its addition to his WD AGO Form 53-55.

3.  The applicant is therefore not entitled to award of the BSM since there is no evidence to show the applicant is eligible for the CIB thereby making him eligible for award of the BSM based on award of the CIB for his service during World War II.  No evidence was found in his available service personnel record to support this award and its addition to his WD AGO Form 53-55.

4.  His claim of entitlement to award of a second PH was carefully considered.  The evidence of record shows he was wounded in action on 20 December 1944 while serving in Belgium.  He was awarded the PH and this award is listed on his WD AGO Form 53-55.  By regulation, in order to support award of a second PH, there must be evidence confirming the wound/injury for which the award is being made was received as a direct result of or was caused by enemy action, the wound/injury was treated by medical personnel, and a record of this treatment must have been made a matter of official record.

5.  There is no evidence of record and he provided insufficient evidence to show he sustained or was treated for wounds received as a result of hostile action on an occasion other than 20 December 1944 or that he was eligible for a second award of the PH based on two separate injuries on that or any other date.  Therefore, he is not entitled to a second award of the PH and its addition to his WD AGO Form 53-55.

6.  He was captured as a POW in January 1945.  There is no evidence he was wounded as a result of hostile action when he was captured as a POW in Germany.

7.  Absent corroborating evidence confirming his contention, the regulatory burden of proof necessary to support award of a second PH has not been satisfied in this case.


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 for correction of the records of the individual concerned.



      ___________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)                                         AR20110023218



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ABCMR Record of Proceedings (cont)                                         AR20110023218



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