RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 DECEMBER 2004
      DOCKET NUMBER:  AR2004105965


      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:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Ronald Weaver                 |     |Member               |

      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, in effect, that he be awarded the Purple Heart
for frostbite.

2.  The applicant states that he was in 42 degree below zero weather night
and day for 52 days and suffered from frostbite.  In a letter to his
congressional representative he states that while on a patrol he came
across a creek which was covered with snow and ice and that when the doctor
came by to check their feet he was told he had frostbite.  He indicated
that the doctor told him he would see him in a few days.

3.  The applicant provides copies of his separation document, a copy of his
Department of Veterans Affairs rating document, and a copy of his February
1945 treatment record.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 4 October 1945.  The application submitted in this case
is dated
19 November 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.  The applicant entered active duty on 25 November 1940 and arrived in
the European Theater of Operations in November 1944 where he performed
duties as an infantryman and was awarded the Combat Infantryman Badge.

5.  According to a medical treatment form, the applicant was admitted to
the hospital in February 1945 for bilateral trench foot, moderately severe,
which was incurred in France “Dec 1944 and Jan. and Feb 1945.”

6.  The applicant returned to the United States in February 1945, after
less than 5 months in Europe and on 4 October 1945 he was honorably
discharged from active duty.  His separation document, which he
authenticated, contains the statement that he suffered from “froze feet in
France Dec. 1944 in combat, evacuated to States…Released to duty 23 July
45.  Feet at present still perspire a lot and get cold easily.”  Item 34
(wounds) on his separation document, however, contains the entry “NONE.”

7.  In January 1946, just 3 months of being discharged from the Army, the
applicant was awarded a 10 percent disability rating by the Department of
Veterans Affairs for “frozen feet.”

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.  However,
awards of the Purple Heart for trench foot were specifically prohibited.

9.  Army Regulation 600-8-22 provides, in pertinent part, that the Bronze
Star Medal is to be awarded to individuals who were authorized the Combat
Infantryman Badge or the Combat Medical Badge for service during World War
II.  Awards of the Bronze Star Medal based on one of the combat badges are
commonly referred to as a conversion award.

10.  Army Regulation 600-8-22 provides for award of the World War II
Victory Medal.  It is awarded for service between 7 December 1941 and 31
December 1946, both dates inclusive.  The award was omitted from his
separation document.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant’s separation document contains a typed entry
regarding frozen feet, the source of the entry is not identified.  The one
existing medical treatment form indicates that the applicant received
medical treatment for trench foot, not frostbite, and as such would not
entitle the applicant to an award of the Purple Heart.

2.  Additionally, the fact that subsequent to his separation from active
duty the Department of Veterans Affairs elected to grant a service connect
disability rating for “frozen feet” is also not a basis to award the Purple
Heart in the absence of compelling medical evidence that the applicant did
in fact suffer from severe frostbite while in action in the face of an
armed enemy.

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 4 October 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.

5.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___YM __  ___ML __  ___RW__  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 Bronze Star Medal and the World War II
Victory Medal.



                            ____Yolanda Maldonado_______
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004105965                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041216                                |
|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.                      |                                        |


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