RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           13 MAY 2004
      DOCKET NUMBER:   AR2003096670


      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. Deborah L. Brantley           |     |Senior Analyst       |


  The following members, a quorum, were present:

|     |Mr. Mark Manning                  |     |Chairperson          |
|     |Mr. Richard Dunbar                |     |Member               |
|     |Ms. Mae Bullock                   |     |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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests award of the Purple Heart.

2.  The applicant states, in effect, that he sustained frozen feet during
the Battle of the Bulge and is now receiving disability payments for the
condition rated at 60 percent.  He states he understands that “frozen feet
are now considered a battle injury.”

3.  The applicant provides a copy of his separation document, a copy of his
2001 Department of Veterans Affairs rating decision, and statement from two
individuals who state they were with the applicant when he suffered from
frostbite, was evacuated and hospitalized.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an error which occurred on 31
May 1946.  The application submitted in this case is dated 15 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
were sufficient documents remaining in a reconstructed record for the Board
to conduct a fair and impartial review of this case.

4.  Information extracted from the applicant's 1946 separation document
indicates that he entered active duty on 30 May 1944 and arrived in the
European Theater of Operations in December 1944.  He was assigned to the
333rd Infantry Regiment.  The applicant returned to the United States in
May 1946 and on 31 May 1946 was honorably discharged as a result of
demobilization.

5.  Item 34 (wounds received in action) on his separation document reflects
"NONE."  The document indicates that the applicant authenticated his
original separation document with his signature and thumbprint.

6.  One of the statements submitted in support of the applicant’s petition
is undated, while the second statement was notarized in November 1988.  One
statement indicates that the author was “with” the applicant when he
suffered frostbite to both feet during the Ardennes campaign and noted that
the applicant was “hospitalized for treatment….”  The author of the second
statement indicated that he was with the applicant when he was “evacuated
for frozen feet during the Battle of the Bulge known also as the Ardennes.”

7.  There were no medical records available to the Board or provided by the
applicant.  There were no files maintained by the Office of The Surgeon
General, commonly referred to as the SGO file which confirmed that the
applicant had been hospitalized during World War II.  His April 2001
Department of Veterans Affairs rating document indicates that the applicant
was granted a combined service connected disability rating of 60 percent
for "residuals of frostbite” to his left and right foot.  Each foot was
independently rated at 30 percent.  The rating document noted that the
applicant’s condition had previously been rated at 10 percent for each
foot.

8.  In the processing of this case, the historical files of the 333rd
Infantry Regiment, maintained at the National Archives in College Park,
Maryland were reviewed.  The review failed to produce any evidence that the
applicant was entitled to an award of the Purple Heart.

9.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple
Heart is awarded for wounds 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 by a
medical officer, and the medical treatment must have been made a matter of
official record.

10.  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 fact 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.  Entitlement to the Purple Heart requires that the individual be wounded
as a result of hostile action, that the wound required treatment by a
medical officer, and that a record of the treatment be made.  In the case
of frostbite, during World War II, awards of the Purple Heart were limited
to individuals who were "severely frostbitten."  Unfortunately, with the
exception of a Department of Veterans Affairs decision and the two
statements, rendered more than 50 years after the fact, there is no
compelling medical evidence which supports a conclusion that the
applicant's feet were severely frostbitten while engaged in combat, that
the degree of frostbite was such as to warrant treatment by a medical
doctor, nor is there any record of such treatment.

2.  The fact that the applicant was initially awarded only 10 percent
supports a conclusion that the applicant's frostbite may not have been
severe enough to meet the requirements for award of the Purple Heart.  The
absence of information in item 34 of his separation document also supports
this conclusion.

3.  The fact that the Department of Veterans Affairs granted a service
connected disability rating to the applicant is not sufficiently
compelling, in the absence of more definitive medical evidence, to warrant
an award of the Purple Heart.

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

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 May 1946, the date of his
separation from active duty.  However, the ABCMR was not established until
2 January 1947.  As a result, the time for the applicant to file a request
for correction of any error or injustice expired on 1 January 1950.
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 the failure to
timely file.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__MM___  __RD ___  __MB ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




            _____Mark Manning________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003096670                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040513                                |
|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.                      |                                        |