MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE:
         DOCKET NUMBER: AR2002070639


         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Victoria A. Donaldson		Analyst

The following members, a quorum, were present:

Mr.		Chairperson
Mr.		Member
Mr.		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
                  Records

         Exhibit B - Military Personnel Records (including
                  advisory opinion, if any)

APPLICANT REQUESTS: Reconsideration of his earlier appeal to correct his military records by showing award of the Purple Heart.

APPLICANT STATES: In effect, that he was wounded in the right hand during the Battle of the Bulge and that his injuries were bandaged. He further states that he was kept in the heat of the battle and that he was awarded the Bronze Star during this time.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in the decisional documents prepared to reflect the Board's previous considerations of Docket Number AR2001059050, dated 16 November 2001, and Docket Number AR2000046215, dated
2 November 2000.

The applicant submitted two letters of support, and page one of a Veterans Administration (VA) Form 2507 [Cold Injury Protocol Examination] not previously seen by the Board. This new evidence will be considered by the Board.

The VA Form 2507 shows that the applicant was examined on 2 January 2001. The applicant's provides the general history on the report which states that he has a shrapnel injury to his right middle finger. He also claims that he participated in the Battle of the Bulge and sustained frostbite injuries to his feet, legs and hands.

The physical examination portion of the VA Form 2507 states that the applicant has a "shortening of the right middle finger from gun shot wound." The physical examination portion does not show any evidence of injury as a result of frostbite to the feet, legs, and hands.

The first letter of support is undated. This letter of support states that the applicant was wounded at the Battle of the Bulge and that he suffered frostbite of the feet and fingers. As a result of those injuries the applicant was unable to write "home" for 2 months.

The second letter of support is dated 14 August 2001. This letter states that the applicant was stationed in the European Theater during the Battle of the Bulge and that he sustained wounds to his right hand. As a result of those injuries, the applicant was unable to correspond with his family for over two months. In addition, the applicant suffered from frostbite of the hands and feet. The letter also states that the applicant was the recipient of the Purple Heart and the Bronze Star.

There is no evidence in the available records which shows that the applicant was wounded or treated for wounds as a result of hostile action. There is also no evidence that the applicant sustained frostbite while engaged in combat.

There is no indication of hospital admission cards created by the Office of the Surgeon General of the Army which show the applicant was hospitalized or treated for wounds or injuries as a result of hostile action in Korea.

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, and the medical treatment must have been made a matter of official record.

While award of the Purple Heart for frostbite injuries is currently prohibited, such injuries were previously a basis for the award. Until 23 August 1951, Army Regulation 600-45, which governed the award of Army decorations, stated that for the purpose of considering an award of the Purple Heart, a “wound” is 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. An “element” pertains to weather and the award of this decoration to personnel who were severely frostbitten while actually engaged in combat is authorized.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence that was not in the record at the time of the Board’s prior consideration. This includes but is not limited to any facts or arguments as to why relief should be granted. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

Army Regulation 15-185 provides further guidance for reconsideration requests that are received more than one year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The Board considered the applicant’s contention that he was wounded in the right hand during the Battle of the Bulge.

2. The Board reviewed the letters of support provided by the applicant. The Board noted that there is no evidence the individuals who prepared the letters of support were eyewitnesses to the applicant's wounding or his treatment for injuries as a result of hostile action. In addition, these statements made over
50 years after the fact are not sufficient by themselves as a basis for award of the Purple Heart in view of evidence of record which shows the applicant was not wounded.

3. The Veterans Administration Form 2507 provided by the applicant does not show that he was wounded as a result of hostile action or that he was treated for wounds as a result of hostile action.

4. The Veterans Administration Form 2507 provided by the applicant does not show that he sustained frostbite during combat or that he was treated for frostbite.

5. There is no evidence of record available to the Board which shows the applicant was wounded or treated for wounds as a result of hostile action during the Battle of the Bulge. There is also no evidence that the applicant sustained frostbite or was treated for frostbite as a result of hostile action during the Battle of the Bulge. Therefore, the Board determined that there is insufficient evidence upon which to base award of the Purple Heart in this case.

6. As a result, the Board concluded that the overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decisions.

7. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

8. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

__JNS___ ____DPH_ __WDP GRANT

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2002073513
SUFFIX
RECON	This applies only to ADRB
DATE BOARDED
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	Denial
REVIEW AUTHORITY
ISSUES 1.	107.0015.0000
2.
3.
4.
5.
6.