RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 October 2005 DOCKET NUMBER: AR20050001239 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Mr. Carl W. S. Chun Director Ms. Prevolia A. Harper Analyst The following members, a quorum, were present: Mr. Ted S. Kanamine Chairperson Mr. Patrick H. McGann, Jr. Member Ms. Carol A. Kornhoff Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of his records to show award of the Purple Heart and the Combat Infantryman Badge. 2. The applicant states that a DA Form 1577 (Authorization for Awards) fails to list all of his authorized awards and that he also should have been awarded the Purple Heart. 3. The applicant provides a statement pertaining to his request for awards, a letter of support, and copies of various morning reports from World War II. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged error or injustice that occurred on 26 November 1945. The application submitted in this case is dated 19 December 2004 2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file. 3. 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 that the applicant’s records were lost or destroyed in that fire. This case is being considered using reconstructed records, which primarily consist of the applicant’s WD AGO Form 53-55, Surgeon General Hospital Reports, and Morning Reports. 4. The applicant’s WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge) shows he was inducted into the Army on 22 November 1942 and entered active duty on 29 November 1942. It also shows he served in the European-African-Middle Eastern Theater of Operations (EAMETO) from 11 October 1944 through 22 October 1945. The record contains no indication that the applicant was ever wounded in action or that he was ever recommended for or awarded the Purple Heart. 5. On 26 November 1945, the applicant was honorably separated from active duty. The separation document (WD AGO Form 53-55) he was issued at the time confirms he completed a total of 2 years, 11 months and 29 days of active military service. Item 30 (Military Occupational Specialty) shows the applicant served in the military occupational specialty (MOS) 506 (Gunner). Item 32 (Battles and Campaigns) contains the entry “Unknown.” 6. Item 34 (Wounds Received In Action) of the applicant’s WD AGO Form 53-55 contains the entry “None” and Item 33 (Decorations and Citations) shows that he earned the World War II Victory Medal and the American Campaign Medal during his active duty tenure. The applicant authenticated this document with his signature in item 54 (Signature of Person Being Separated). 7. The applicant’s WD AGO Form 53-55 shows he was granted a certificate of disability for discharge based on Army Regulation 215-361 in effect at that time. 8. There are no General Orders in the available records supporting award of the Purple Heart. There is also no evidence in the applicant’s available military records which show he was wounded or treated for wounds as a result of hostile action. 9. In response to inquires initiated by the applicant, the National Personnel Records Center (NPRC) conducted searches of the unit morning reports and sick reports for the applicant’s unit in the European Theater of Operations (ETO). This search produced records which show the applicant was transferred to the 2nd Evacuation Hospital and that he suffered from trench foot. The applicant’s Veterans Affairs Officer was notified by letter on 29 June 2001 that this search failed to show the applicant was listed for award of the Purple Heart. 10. The applicant’s record contains a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 5 January 2001. This document shows the applicant was awarded campaign credit for Ardennes-Alsace, Rhineland, and Central Europe. The applicant was also awarded the Bronze Star Medal, the Combat Infantryman Badge, the Army Good Conduct Medal, the Belgian Fourragere, and the EAME Campaign Medal with 3 bronze service stars. On 5 January 2001, the Military Awards Branch (Total Army Personnel Command) issued a DA Form 1577 which verified the applicant’s entitlement to these awards. The Purple Heart was not included as one of the awards issued at that time. 11. The applicant’s record contains hospital admission records from the Office of The Surgeon General show the applicant was admitted to General Hospital and treated for peripheral vascular disease [foot] and psychoneurosis. The circumstances are shown as nontraumatic and the causative agent was not found. The final result is shown as discharge/retirement for medical reasons but not for any residual condition. This document also shows the applicant’s condition was considered in the line of duty and he was recommended for discharged based on a disability. 12. The applicant provided morning reports for the period November 1944 through January 1945. However, these reports fail to show the applicant was injured as the result of hostile action or that he suffered from any condition related to combat. These documents consistently show the applicant suffered from trench foot. 13. The applicant provided a statement in which he stated he was including evidence which established the fact that he should have been awarded the Purple Heart. He explained that he received a concussion injury from a buzz bomb on 17 November (year not stated). The applicant also stated that he should have been awarded the Combat Infantryman Badge as he carried an infantry MOS and served with the 98th Division 394th Infantry while in combat in the Ardennes Forest. 14. The applicant provided a letter of support from an individual who stated that she has known the applicant for a long period of time and that it makes the applicant angry that he was unable to save those around him during the war. The individual further stated that she knows that his medical records show that he had a problem with his nerves and was supposed to get a rating. She continued that the applicant never received a Purple Heart. 15. Army Regulation 600-45 dated 23 September 1943, change 4 dated 3 May 1944, provided for award of the Purple Heart to members of the armed forces of the United States who were wounded in action against an enemy of the United States, or as a direct result of an act of such enemy, provided such wound necessitated treatment by a medical officer. For the purpose of awarding the Purple Heart, a wound was defined as an injury to any part of the body from an outside force, element, or agent sustained as the result of a hostile act of the enemy or while in action in the face of the enemy. In connection with the definitions of "wound", the word "element" referred to weather and permitted award to personnel severely frostbitten while actually engaged in combat. Trench foot would not be considered as meriting award. 16. Army Regulation 800-8-22 (Military Awards) 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, and the medical treatment must have been made a matter of official record. 17. Paragraph 5-10 of the awards regulation contains guidance on award of the Army Occupation Medal. It states, in pertinent part, that it is awarded for the occupation of Germany for the period between 9 May 1945 and 5 May 1955. It further indicates that service between 9 May and 8 November 1945 will be counted only if the European-African-Middle Eastern Campaign Medal was awarded for service before 9 May 1945. The applicant’s unit, the 394th Infantry Regiment, 99th Infantry Division, received occupation credit for Germany for the period 2 May 1945 to 4 September 1945. DISCUSSION AND CONCLUSIONS: 1. The evidence of record and independent evidence provided by the applicant fails to support his claim of entitlement to the Purple Heart. By regulation, in order to support award of the Purple Heart, there must be evidence showing that the Soldier was wounded or injured in action, that the wound for which the award is being made required treatment by military medical personnel and this treatment must have been made a matter of official record. 2. The morning reports submitted by the applicant show he suffered from trench foot. While the trench foot injury incurred by the applicant is unfortunate, it does not meet the criteria for award of the Purple Heart outlined in either the old or current regulation. The information contained in the morning reports are not supportive of the applicant’s contention that he was injured as a result of enemy action. Therefore these documents are insufficient evidence upon which to base award of the Purple Heart. 3. Hospital Admission Cards created by the Office of The Surgeon General show the applicant was treated for psychoneurosis and peripheral vascular disease. Although this document shows the applicant was recommended for discharge with disability as noted on his WD AGO Form 53-55, this document does not show any wounds or injuries received as a result of hostile action. 4. The veracity of the applicant’s claim that he received a concussion as the result of a bomb blast is not in question. However, absent any evidence of record to corroborate that the applicant sustained and/or was treated for a combat related wound/injury, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case. 5. In the absence of military records which show the applicant was wounded or treated for wounds or injuries as a result of hostile action, there is insufficient evidence upon which to base correction of his records to show award of the Purple Heart. 6. The applicant contends that he is entitled to award of the Combat Infantryman Badge. However, evidence of record reveals that his records were corrected to show the Combat Infantryman Badge, the Bronze Star Medal, and other awards related to his service during World War II. Therefore, there is no basis for correcting his records to show award of the Combat Infantryman Badge. The applicant will be provided a copy of the DD Form 215 showing his additional awards. 7. Records show the applicant should have discovered the alleged error or injustice now under consideration on 26 November 1945. However, the ABCMR was not established until 2 January 1947. Therefore, the time for the applicant to file a request for correction of any error or injustice expired on 1 January 1950. However, he failed to file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case. 8. The applicant met the eligibility criteria for award of the Army of Occupation Medal with Germany clasp and it should be added to his WD AGO Form 53-55. The omission of this award from his record and separation document is an administrative matter that does not require Board action to correct. Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 3 of the BOARD DETERMINATION/RECOMMENDATION section below. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __TSK __ __PHM__ __CAK __ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice related to award of the Purple Heart. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned. 3. The Board determined that an administrative error in the records of the individual should be corrected. Therefore, the Board requests that CMSD-St. Louis administratively correct the records of the individual concerned to show his entitlement to the Army of Occupation Medal with Germany Clasp. ____Ted S. Kanamine_____ CHAIRPERSON INDEX CASE ID AR20050001239 SUFFIX RECON YYYYMMDD DATE BOARDED 20051013 TYPE OF DISCHARGE (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) DATE OF DISCHARGE YYYYMMDD DISCHARGE AUTHORITY AR . . . . . DISCHARGE REASON BOARD DECISION (NC, GRANT , DENY, GRANT PLUS) REVIEW AUTHORITY ISSUES 1. 2. 3. 4. 5. 6.