RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            11 MAY 2004
      DOCKET NUMBER:   AR2003098228


      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. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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 that his service medical records should have read
“frostbite” vice “trench foot.”  He states that many of the infantry
Soldiers during the Battle of the Bulge in December 1944 suffered from
frozen feet.  However, he notes that some medical stations “called some of
us had trench feet and others with frostbite.”  He states that it all
depended on the doctors or nurses to pick one or the other.

3.  The applicant provides a copy of his August 1998 Department of Veterans
Affairs Rating which increased his service connected rating for residuals
of frostbite from 10 percent to 30 precent.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 28 September 1945.  The application submitted in this case is
dated
20 September 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.  With the exception of documents associated with the treatment of the
applicant’s trench foot and medical processing, the applicant’s remaining
military records, including a separation document, were 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.  The applicant entered military service in December 1943.






5.  Medical documents contained in the applicant’s file indicate that
between
17 and 19 December 1944 his feet were wet and cold and that he was unable
to change his socks or take care of his feet because the unit was
retreating.  He was apparently admitted to the hospital on 19 December 1944
by litter and ultimately evacuated to a medical facility in the United
Kingdom on 12 January 1945.  The medical documents consistently reported
his foot condition as bilateral trench foot, moderate.

6.  By 27 January 1945 a medical board concluded that the applicant was
unfit for further duty in the European Theater of Operations because of
bilateral trench foot and recommended he be transferred to the “Zone of the
Interior” for further hospitalization and treatment.

7.  After receiving treatment from a variety of medical treatment
facilities, the applicant was issued a “Certificate of Disability for
Discharge” at Camp Butner, North Carolina on 24 September 1945 and
discharged on 28 September 1945.  The final diagnosis was consistent with
the pervious determination; that the applicant suffered from moderate,
bilateral trench foot.

8.  The applicant’s Department of Veterans Affairs rating document notes
that effective in 1998 the applicant was granted a combined disability
rating of 30 percent for residuals of frostbite to his right and left foot
and peripheral neuropathy of his right and left lower extremities.

9.  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 by a
medical officer, and the medical treatment must have been made a matter of
official record.  The commanding General of any separated unit and hospital
commanders are designated as the primary wartime award authority for the
Purple Heart.

10.  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.



11.  The Medline Plus Online (an online service ny the National Library of
Medicine and the National Institutes of Health) medical encyclopedia states
that frostbite occurs when the skin and body tissues are exposed to cold
temperature for a prolonged period of time. Hands, feet, noses, and ears
are most likely to be affected.  The first symptoms are a "pins and
needles" sensation followed by numbness. There may be an early throbbing or
aching, but later on the affected part becomes insensate (feels like a
"block of wood").  Frostbitten skin is hard, pale, cold, and has no
feeling. When skin has thawed out, it becomes red and painful (early
frostbite). With more severe frostbite, the skin may appear white and numb
(tissue has started to freeze).  Very severe frostbite may cause blisters,
gangrene (blackened dead tissue), and damage to deep structures such as
tendons, muscles, nerves, and bone.
12.  Doyland's Illustrated Medical Dictionary describes frostbite as damage
to tissues as the result exposure to environmental temperatures and notes
that deep frost bite is marked by vivid cyanosis (bluish discoloration ).

13.  Neither of the above discuss trench foot; however, The Merck Manual,
Fortheenth Edition groups "Frostnip; Frostbite; Accidental Hypothermia;
Exposure; Immersion Foot or Trench foot; Chilblains; [and] Perenia"
together under the heading of Cold Injuries.  It notes that exposure to
damp cold (temperatures around freezing) causes immersion or trench foot,
chilblains, and frostnip.  Exposure to dry cold (temperatures well below
freezing) more often causes frostbite…"

14.  Associated with the Office of The Surgeon General (OTSG) opinion in
similar cases are excerpts from an Army historical documents discussing the
topic at issue.  They make 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 trench foot 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 cases 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.

DISCUSSION AND CONCLUSIONS:

1.  The possibility of inconsistency in applying the rules and the criteria
and the apparent difficulty in diagnosing cold injuries has been noted.
Nevertheless, the case comes down to diagnosis and the medical authorities
who were present on the scene and had the authority to award the Purple
Heart.  There is no evidence that any of the authorized award authorities
concluded that the applicant’s foot condition warranted an award of the
Purple Heart.

2.  The fact that the applicant’s condition was consistently recorded as
trench foot and that the trench foot resulted from “wet and cold” weather,
rather than merely “cold” weather, supports a conclusion that the
applicant’s original diagnosis was accurate.  The fact that the Department
of Veterans Affairs has now, more than 50 years later, rendered a diagnosis
of frostbite is not a basis to award the applicant the Purple Heart and
there is insufficient evidence to now award the Purple Heart contrary to
regulation.

3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 September 1945, 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

__FE ___  ___RD __  __YM ___  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.




            _____Fred Eichorn_________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003098228                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040511                                |
|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.                      |                                        |