RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 27 APRIL 2004
         DOCKET NUMBER: AR2003096025


         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
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Fred Eichorn		Chairperson
Mr. Patrick J. McGann, Jr.		Member
Ms. Marla J. N. Troup		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

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

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests award of the Purple Heart.

2. The applicant states that he is receiving a 60 percent disability rating because of residuals from frozen feet that he sustained during the Battle of the Bulge in 1944. He is receiving a 100 percent rating because he is unemployable. His records will show that he was in a hospital for 3 1/2 months because of his frozen feet.

3. The applicant provides a copy of a Department of Veterans Affairs (VA) letter informing him of his monthly rate of disability compensation, a copy of his WD AGO Form 53-55 (Enlisted Record and Report of Separation), and a copy of his WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty or Retirement).

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error or injustice which occurred on 11 June 1946. The application submitted in this case is dated 8 August 2003.
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. However, there are sufficient documents for the Board to conduct a fair and impartial review of this case.

4. The applicant's WD AGO Form 53-55 shows that he was inducted into the Army on 8 May 1944, participated in the European Theater of Operations during World War II, arriving overseas in November 1944 and returning to the United States in May 1946. He was discharged on 11 June 1946 in the rank of corporal. That form shows his unit of assignment during war as Company E, 328th Infantry Regiment, 26th Infantry Division. He participated in two campaigns, the Ardennes and the Rhineland, and was awarded the Combat Infantryman Badge, the European-African-Middle Eastern Campaign Medal, the Good Conduct Medal, and the World War II Victory Medal.

5. The applicant's WD AGO Form 38 shows that he was treated for trench feet in January 1945 at the 159th General Hospital in England for 2 1/2 months.

6. Information from the hospital admission cards created by the Office of The Surgeon General show that the applicant was admitted to a hospital on 25 December 1944 because of a battle injury. He was diagnosed as having a "condition due to reduced temperature: trench foot," and "atrophy or paralysis of muscle … Muscles and fasciae of the shoulder, other (infraspinatus)," and "arthritis, chronic, type unspecified." The causative agent of his conditions was "cold injury, ground type." He was hospitalized for 70 days and returned to duty in March 1945.

7. Army Regulation 600-8-22 provides for award of the Bronze Star Medal to each member of the Armed Forces of the United States who, after 6 December 1941 has been cited in orders or awarded a certificate for exemplary conduct in ground combat against an armed enemy between 7 December 1941 and 2 September 1945. The award of a Combat Infantryman Badge is considered as a citation in orders.

8. The Army of Occupation Medal with Germany clasp is awarded for service for 30 consecutive days while serving as a member of an occupation force in Germany from 9 May 1945 through 5 May 1955.

9. The Unit Citation and Campaign Participation Credit Register shows that the 328th Infantry Regiment was awarded the Distinguished Unit Citation (now the Presidential Unit Citation) for its actions from 23-25 December 1944 and the Citation in the Order of the Day of the Belgian Army for its actions from 20 December 1944 to 26 January 1945. The regiment served as an occupation force in Germany subsequent to the cessation of hostilities.

10. Quotation from a previous case: "Excerpts from an Army historical document which is attached to a Surgeon General Opinion in a similar case, discusses the topic at issue, trenchfoot vs frostbite, it makes clear numerous specific points including the following: The term “element” (included from the beginning) meant weather. The governing regulation and policy were not always the same. Both policy and enforcement varied from time to time and place to place and were not consistently applied even in adjacent major European commands. The regulation normally authorized the Purple Heart for frostbite while in combat and sometimes excluded the award for trenchfoot while in combat. The Medical Department resisted administering a policy they could not control; in part, because initial diagnosis was very difficult yet the symptomatic development of individual conditions invited re-diagnosis, in part, because the ultimate degree of permanent disability had virtually nothing to do with the initial cause; in part, because training and enforcement of prevention rested with line commanders; and finally, because initial diagnosis, while extremely difficult, was almost always made by medical personnel who were intimately familiar with both the weather and the tactical situation, but rear echelon doctors tended to change the diagnoses for whatever reasons met their needs."

11. Army Regulation 600-8-22 presently effective and the award regulation then in effect both provide that the Purple Heart is awarded for a wound sustained while in action against any enemy or 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 by a medical officer, and the medical treatment must have been made a matter of official record.

12. While award of the Purple Heart for frostbite injuries is currently prohibited, such injuries were previously a basis for the award. Until 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.

DISCUSSION AND CONCLUSIONS:

1. Notwithstanding the applicant's contention, the evidence shows that he had trench foot in December 1945 and was treated for trench foot. His report of physical examination shows that he spent 2 1/2 months in a hospital in England because of trench feet. Although the award of the Purple Heart for frostbite injuries was authorized until 1951, it was never authorized for Soldiers who had trench foot, and because there is insufficient evidence to show that he had frostbite, the applicant is not entitled to award of the Purple Heart.

2. The applicant is entitled to award of the Bronze Star Medal, the Presidential Unit Citation, the Citation in the Order of the Day of the Belgian Army, and the Army of Occupation Medal with Germany clasp.

3. Records show the applicant should have discovered the alleged error or injustice now under consideration on 11 June 1946; however, in view of the fact that the board was not established until 2 January 1947 the applicant’s 3 year period in which to file an application for correction of military records expired on 1 January 1950, 3 years from the date the Board was established. However, the applicant did not 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.

4. Evidence shows that the applicant’s records contain administrative error which does not require action by the Board. 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 RELIEF

________ ________ ________ GRANT FORMAL HEARING

__FE ___ __PHM __ __MJNT_ DENY APPLICATION

1. The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice. 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 administrative error in the records of the individual should be corrected. Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show award of the Bronze Star Medal, the Presidential Unit Citation, the Citation in the Order of the Day of the Belgian Army, and the Army of Occupation Medal with Germany clasp.




                  _____Fred Eichorn_______
                  CHAIRPERSON

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INDEX

CASE ID	AR2003096025
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040427
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	107.00
2.
3.
4.
5.
6.