RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            22 APRIL 2004
      DOCKET NUMBER:   AR2003099289


      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 James C. Hise                  |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Frank C. Jones, II            |     |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.

3.  The applicant provides a copy of his separation document and copies of
his 1999 Department of Veterans Affairs Rating decision in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an error which occurred on 20
May 1946.  The application submitted in this case is dated 21 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 22 March 1944 and arrived in the
European Theater of Operations in January 1944.  He was assigned to the
67th Armored Regiment.  The applicant returned to the United States in May
1946 and on 20 May 1946 was honorably discharged as a result of
demobilization.

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

6.  There were no medical records available to the Board or provided by the
applicant.  His March 1999 Department of Veterans Affairs rating document
indicates that the applicant was granted a combined service connected
disability rating of 60 percent for "residuals, cold injury…claimed as
frozen feet" to his left and right foot.  Each foot was independently rated
at 30 percent.  The rating document noted that the applicant had been
denied service connected disability for the condition in June 1946.

7.  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.

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 is authorized.

9.  A review of Department of the Army Pamphlet 672-1 (Unit Citation and
Campaign Participation Credit Register) notes the applicant’s unit was
awarded the Belgian Fourragere during his tenure with the organization.
The award was omitted from his separation document.

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, 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 denied a service connected
disability rating within months of his separation from active duty in 1946,
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 20 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.

6.  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

__JCH __  __LDS __  __FCJ __  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.
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 entitlement to the Belgian Fourragere.




            ____ James C. Hise_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003099289                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040422                                |
|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.                      |                                        |