RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-03253
            INDEX CODE 107.00
            COUNSEL: William L. Abernathy, Jr.

            HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be awarded the Purple Heart (PH) for  an  injury  sustained  during
World War II (WWII) on 25 Dec 44.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was injured during a Japanese air raid but was  never  awarded  the
PH.  Just this year he learned that combat-related injuries authorized
award of the PH.  He was stationed at Chakulia, India, in  the  middle
of the Bengal jungle far from civilization, under British control.  On
25 Dec 44, under an air raid alert and blackout conditions, he ran  to
the barracks area from the flight line because there was no cover.  He
jumped or fell into an air raid trench, went down on his left side and
injured his left wrist and left knee.   He  felt  a  loud  crunch  and
excruciating  pain  in  his  left  knee,  which  swelled  and   caused
difficulty in walking.  The flight surgeon treated him  the  next  day
with a knee wrap  and  drained  fluid  on  later  occasions.   It  was
impossible to stay off the knee as the doctor ordered because  of  the
mission  demands.   He  had  to  continue  to  fly  in  spite  of  his
disability.   This  injury  has  dogged  him  continually  since   his
discharge from active duty in 1945.

Counsel provides, among other documents, the Group History of  HQ 40th
Bombardment Group (40BG) recounting the Japanese air raid  on  25  Dec
44; the applicant’s sworn affidavit; a 1982 statement from the  flight
surgeon assigned to the 25th Bombardment  Squadron  (25BS),  40BG,  in
India describing his treatment  of  the  applicant’s  knee  injury;  a
letter from the National Personnel Records Center (NPRC) advising  the
applicant’s service records could not be found and were likely lost in
the 1973 fire; a 14 Oct 45 physical examination  of  applicant’s  left
knee injury;  and  a  Department  of  Veterans  Affairs  (DVA)  rating
granting service-connection for arthritis of the left knee.

The flight surgeon’s  7  Oct  82  statement  asserts  he  treated  the
applicant on three or four occasions for “an  reinjury”  to  the  knee
that occurred on a number of occasions “but particularly at
one time during a blackout and an air raid alert at Chakulia.”   There
was considerable edema of the knee and the  surgeon  used  an  elastic
support and prescribed rest.  The surgeon does  not  remember  whether
aspiration was done at that time but is certain x-rays were not taken.
 He  believes  the  applicant’s  injury  is  service-related  and  was
“reinjured” in the service.

The complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The following information was extracted from the applicant’s available
military records (Exhibit  B)  and  official  documents  he  submitted
(Exhibit A).

The applicant entered active duty on 29 May 1942 as an Army Air  Corps
2nd lieutenant and served as a B-29 bomber pilot with the 25BS,  40BG.
He was deployed to the Asiatic-Pacific Theater on 23 Nov  44.   During
the period in question, he was located at the Chakulia Base in India.

At Exhibit A is a Group History retyped from microfilm of the HQ 40BG,
Office of the Historical Officer, for the period 1 through 31 Dec  44,
dated 23 Jan 45.  It reports that,  except  for  the  few  individuals
remaining on duty, most of the personnel were off  on  Christmas  Day.
In the evening of 25 Dec 44,  a  Yellow  alert  was  sounded  and  all
personnel dispersed to slit  trenches  bearing  their  gas  masks  and
helmets.  The sirens sounded the Red alert within half an  hour.   One
enemy bomber approached Chakulia but evidently did not come  over  the
field.  However, tracers and flak explosions could be seen  just  over
the horizon in the direction of the 468th Group at Sulua where, it was
learned the next day, small  two-pound  incendiaries  set  fire  to  a
couple of bashas and injured four men.  The alert lasted for more than
two hours but no bombs were dropped at this base.

The applicant was returned to the US on 18 Sep 45.

The  applicant’s  flying  exams,  beginning   on   15 Jun   41,   were
unremarkable  except  for  one,  dated   14 Oct   45,   performed   at
Ft. McPherson, GA, for the purpose  of  separation.   In  Section  12,
Medical History, it indicates “Injury left  knee-1943,  Ganglion  left
wrist,” and in Section 40, Bones, Joints, Muscles, it states “Ganglion
left wrist IMS Knee injury.”

The applicant was released from  active  duty  in  the  grade  of  1st
lieutenant  on  21 Dec  45  and  transferred  to  the  Reserves.    He
participated in  the  Antisubmarine  Campaign,  and  the  India-Burma,
Central Burma,  China,  and  Japan  Campaigns.   He  was  awarded  the
Distinguished Flying Cross with one Oak Leaf Cluster (1OLC), Air
Medal with 3OLC, Presidential Citation  with  1OLC,  American  Theater
Medal, Asiatic-Pacific Theater Medal with four Bronze  Service  Stars,
WWII  Victory  Medal,  Philippines   Liberation   Ribbon,   and   Army
Commendation Medal.

According to Reserve Order dated 1 Oct 82, the applicant was  assigned
to the Retired Reserve in the grade of captain effective 20 Sep 82.

On 5 Feb 01, the applicant was awarded a 10% DVA rating  for  service-
connected traumatic arthritis of the left knee, effective  21 Oct  96.
Although the service medical records were negative  for  arthritis  of
the left knee, the DVA determined there  was  evidence  the  applicant
sustained two or more injuries  to  the  left  knee  in  the  service.
Reasonable doubt was resolved in favor of the applicant for a combined
evaluation of 20%.  As of Dec 04, he has a 50%  rating  for  traumatic
arthritis and paralysis of a nerve.

On 28 Jul 03, the applicant’s Congressional Representative inquired in
the applicant’s behalf for award of the PH.  The Army Chief,  Military
Awards  Branch,  US  Total  Army  Personnel  Command,   referred   the
Representative to the NPRC.  The Chief also advised that, during WWII,
Hospital and Division commanders had PH award authority and would have
awarded it at that time  if  the  applicant  was  entitled.   However,
during WWII, annotations  were  normally  made  in  the  unit’s  daily
morning report (company level) when soldiers incurred injuries in  the
line of duty.

The Representative contacted the NPRC  on  2  Feb  04,  regarding  the
applicant’s PH and requested a review of his unit’s  morning  reports.
On 12 Mar 04, the NPRC advised the applicant’s records may  have  been
damaged in the 12 Jul 73 fire.  A search was conducted for the morning
reports for the 25BS for Nov and Dec  44  and  Jan  45.   However,  no
remarks pertaining to the applicant were found.   Further,  accidental
injuries received in a combat zone are not considered wounds  received
in action.

Around Jun-Jul 04, another Representative inquiring in behalf  of  the
applicant was advised that he should submit an appeal to the
AFBCMR.  The applicant submitted his DD Form 149 on 14 Oct 04.

On 16 Nov 04, HQ AFPC/DPPPRA advised the applicant they were unable to
verify his entitlement  to  the  PH.   They  requested  he  provide  a
detailed personal account of the circumstances, medical  documentation
substantiating medical  treatment  and,  if  possible,  an  eyewitness
account.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPPR contends that, to be  awarded  the  PH,  a  member  must
provide documentation supporting he was wounded as a direct result  of
enemy action [emphasis advisory]; indirect injuries  do  not  meet  PH
criteria.  Indirect injuries include but are not limited  to  injuries
received while seeking shelter from mortar or rocket attacks, aircraft
bombings, grenades, or while serving as an aircraft  member  or  in  a
passenger status as  a  result  of  the  aircraft’s  evasive  measures
against hostile fire.  DPPPR concludes the applicant’s request  should
be denied as there is no medical evidence in his official  records  to
substantiate his claim.  Running from the flight lines to the air raid
trenches, falling into the trenches, and injuring his  left  knee  and
wrist does not demonstrate a direct wound or injury  as  a  result  of
enemy fire.

A complete copy of the evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel provides a statement, a supporting letter from the applicant’s
Congressional Representative, and the same attachments submitted  with
the application.   Counsel  asserts  that,  given  the  conditions  in
Chakulia, it is not surprising the flight surgeon’s minimal  treatment
did not appear in the applicant’s medical  records.   He  argues  that
today’s Army Regulation directs commanders to take into  consideration
the degree to which the enemy caused the injury.  It is  not  intended
that such a strict interpretation of the requirement for the wound  or
injury to be caused by direct result of hostile action be  taken  that
it would  preclude  the  award  being  made  to  deserving  personnel.
Counsel contends the direct, precipitating event was the air raid  and
the applicant would not have been hurt  if  he  had  not  jumped  into
trench during a Japanese air raid.   The  Board  should  look  to  the
spirit of the regulations.

Counsel’s complete response, with attachments, is at Exhibit E.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    The applicant has exhausted all remedies  provided  by  existing
law or regulations.

2.    The application was not timely filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.    Insufficient relevant evidence has been presented to demonstrate
the existence of error or injustice.  After a thorough review  of  the
available evidence of record and  counsel’s  submission,  we  are  not
persuaded the applicant should be awarded the PH.  We do  not  dispute
the applicant’s assertion that he injured his left knee jumping into a
trench during an air raid.  The surgeon states he recalls treating the
“reinjury” of the knee on a number of occasions, “particularly at  one
time during a blackout and an air raid alert.”  We note  there  seemed
to be an implication that the knee had been injured prior to  the  air
raid incident, since the surgeon  refers  to  a  “reinjury,”  and  the
14 Oct  45  flying  exam  reported  a  left  knee  injury   in   1943.
Regardless, the DVA appropriately  deemed  the  knee  injury  service-
connected and rated the condition accordingly.  However, the applicant
has not established to our satisfaction that his injury, while service-
connected, was the direct result of enemy action, which  is  the  most
important criterion for the PH.  In this regard, the 1-31 Dec 44 Group
History reports Yellow and Red alerts  were  sounded  on  25  Dec  44,
personnel took cover in trenches, and no bombs  were  dropped  at  the
applicant’s base.  Taking cover from  potential  and/or  actual  enemy
attack is the rational and  prudent  thing  to  do,  but  accidentally
injuring oneself in the process is not a causal effect of direct enemy
action.  Counsel cites recent Army Regulations  purportedly  loosening
the direct enemy action criterion, but as an Air Force entity,  we  do
not feel bound to agree with his interpretation.  Consequently, we  do
not believe a PH is appropriate in this  case.   We  would  emphasize,
however, that our decision in no way diminishes  the  significance  of
the applicant’s unselfish performance during a dangerous period in our
nation’s  history.   We  commend  his  bravery  and  hope   he   takes
justifiable pride in the  contributions  he  made  in  protecting  our
country.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of material error  or  injustice;  that  the
application was denied without a personal  appearance;  and  that  the
application will only be reconsidered upon  the  submission  of  newly
discovered relevant evidence not considered with this application.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 23 February and 9 March 2005 under the provisions
of AFI 36-2603:

                 Mr. Robert S. Boyd, Panel Chair
                 Mr. John B. Hennessey, Member
                 Mr. Patrick C. Daugherty, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2004-03253 was considered:

   Exhibit A.  DD Form 149, dated 14 Oct 04, w/atchs.
   Exhibit B.  Applicant's Available Master Personnel Records.
   Exhibit C.  Letter, HQ AFPPPR, dated 28 Dec 04.
   Exhibit D.  Letter, SAF/MRBR, dated 7 Jan 05.
   Exhibit E.  Letter, Counsel, dated 2 Mar 05, w/atchs.




                                   ROBERT S. BOYD
                                   Panel Chair