RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 27 MAY 2004
         DOCKET NUMBER: AR2003096416


         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. Melvin Meyer		Chairperson
Ms. Regan Smith		Member
Mr. Thomas O'Shaughnessy		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 a publication announced that determination for a Purple Heart is made on an individual basis by this Board, and therefore, he is submitting his application for that award. The applicant states that he was taken prisoner during the Battle of the Bulge at St. Vith in Belgium on 21 December 1944. While a prisoner of war (POW), he was transported by boxcar from Stalag XII-A, Limburg, to Stalag X-IIIB in Hammelburg, Germany, at which time he ended up with frozen feet. They turned black. The German doctor that looked at his feet told him that he would probably lose both feet. Upon his liberation from the POW camp on 6 April 1945, he was given penicillin every four hours, night and day, for several months, which saved his feet. He was flown back to the states from Europe and spent several months in the hospital at Fort Devens, Massachusetts. His records are at the Department of Veterans Affairs (VA) hospital in Leeds, Massachusetts. He is rated 100 percent disabled by the VA.

3. The applicant provides a statement from the Veterans Administration indicating that he was a POW.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error or injustice which occurred on 5 September 1945. The application submitted in this case is dated 14 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 WD AGO Form 53-55 (Enlisted Record and Report of Separation) shows that he entered on active duty on 1 July 1943 and served in the European Theater of Operations during World War II, arriving in that theater
on 16 May 1944. That form shows that his unit of assignment was Company H, 168th Combat Engineer Battalion, that he participated in five campaigns during the war, that he returned to the United States in May 1945, and was discharged with an Honorable Certificate of Disability on 5 September 1945 at Lovell General Hospital at Fort Devens, Massachusetts in the grade of Technician 5th Grade. He had 1 year, 2 months, and 16 days of service in the continental United States, and 1 year and 3 days of foreign service.

4. In a 4 February 1987 request for World War II medals to the Reserve Components Personnel and Administration Center at St. Louis, the applicant mentioned that he fought in the Battle of the Bulge and was a combat medic with the 168th Engineer Battalion and administered aid to the wounded at St. Vith in Belgium.

5. On 18 April 1988, in his request for award of the POW Medal, the applicant stated that he was confined as a POW from 21 December 1944 to 6 April 1945 at Gerolstein, Germany (warehouse), Stalag XIIA, Limburg, Germany, Stalag XIIC, Hammelburg, Germany, and the hospital barracks at Hammelburg.

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 10 April 1945, that he was a repatriated prisoner of Germany, that his condition was diagnosed as malnutrition and peripheral vascular disease to the feet, and that he was discharged because of his disease to the feet. He was hospitalized for 148 days.

7. 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.

8. 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 was authorized.

9. During World War II and the Korean War the Purple Heart was not awarded to soldiers who had been injured while in captivity or while being taken captive. These injuries were considered to be the result of war crimes and not the result
of a legal action of war. War Department policy, at that time, required that wounds must have been received in action against the enemy or, in other words,
incurred in actual combat. Executive Order 11016, dated 25 April 1962, provided more latitude with respect to award of the Purple Heart to prisoners of war, as well as the authority to award the decoration to wounded soldiers even in the absence of a formal declaration of war. The issue as to whether this change in policy would be implemented retroactively to prisoners of war from World War I, World War II, and the Korean War was considered several times. Initially it was decided that the change in policy would not be retroactively implemented. It was concluded that it would be inappropriate for the Department of Defense to retroactively change the standards and, in effect, countermand the decisions of the past leadership. However, as part of the National Defense Authorization Act (NDAA) of 1996 Congress authorized award of the Purple Heart to any former prisoner of war who was wounded before 25 April 1962 while held as a prisoner or war, or while being taken captive, in the same manner as a former prisoner of war who was wounded on or after that date.

10. The American Campaign Medal is awarded for service within the American Theater between 7 December 1941 and 2 March 1946 within the continental limits of the United States for an aggregate period of one year.

11. The Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service. This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.

12. The Unit Citation and Campaign Participation Credit Register shows that the 168th Combat Engineer Battalion was awarded the Distinguished Unit Citation (now the Presidential Unit Citation), and the Citation in the Order of the Day of the Belgian Army for its actions in December 1944 while the applicant was assigned to that unit. The Center for Military History web site shows that the 168th was awarded the Presidential Unit Citation for its actions at St. Vith during the Ardennes-Alsace campaign (popularly known as the Battle of the Bulge) during the war.

DISCUSSION AND CONCLUSIONS:

1. The applicant participated in the Ardennes-Alscace campaign during the war, and was captured by the Germans apparently at St. Vith during the Battle of the Bulge. The evidence shows that he was discharged because of a disability to his feet, peripheral vascular disease, and that he had been hospitalized for 148 days. Although the applicant may well have had frozen feet during his captivity, there is no evidence that his injuries were a result of hostile action. The applicant himself states that he froze his feet while being transported from one prison camp to another. There is insufficient evidence to grant the applicant's request for award of the Purple Heart.

2. The applicant served in the Army for over two years, one year of which was in the European Theater of Operations. He participated in five campaigns, was a prisoner of war, hospitalized, and discharged in the grade of Technician Fifth Grade. He served his country honorably and faithfully, and is entitled to award of the Army Good Conduct Medal.

3. The applicant is entitled to award of the World War II Victory Medal, the American Campaign Medal, the Presidential Unit Citation, the Citation in the Order of the Day of the Belgian Army, and the POW Medal.

BOARD VOTE:

__MM ___ __RS ___ __TO ___ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by
showing award of the Army Good Conduct Medal, the World War II Victory Medal, the American Campaign Medal, the Presidential Unit Citation, the Citation in the Order of the Day of the Belgian Army, and the POW Medal.

2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to award of the Purple Heart.






                  _____Melvin Meyer_________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003096416
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040527
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	107.00
2.
3.
4.
5.
6.