RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 August 2005
      DOCKET NUMBER:  AR20040009592


      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. Klaus P. Schumann             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Linda M. Barker               |     |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, award of the Purple Heart (PH) for
injuries sustained during his service in the Army during World War II
(WWII)      .

2.  The applicant states, in effect, that he served at the Battle of the
Bulge during WWII and both of his feet were frozen.  He states that he was
never awarded the PH for these injuries.

3.  The applicant provides, in support of his application, a copy of his
separation document (WD AGO 53-98), effective 10 September 1946, and a
Department of Veterans Affairs rating decision, dated 15 September 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 10 September 1946.  The application submitted in this
case was received on 5 November 2004.

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 limitations 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.  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 in that fire.  This case is being considered
based on reconstructed records, which consist primarily of the applicant's
WD AGO Form 53-98, dated 10 September 1946, and a Department of Veterans
Affairs rating decision provided by the applicant.

4.  The applicant's WD AGO Form 53-98 shows he entered active duty on
16 June 1943 and that he served in military occupational specialty
(MOS) 1331 (Combat Engineer Unit Commander).  It also confirms he was
honorably separated on 10 September 1946, and that he held the rank of
Captain (CPT) on the date of his separation.


5.  The applicant’s WD AGO Form 53-98 further shows that he served in the
European Theater of Operations (ETO) from 2 November 1944 through 17 June
1946.  Item 28 (Battles and Campaigns) indicates he participated in the
Rhineland, Ardennes and Central Europe campaigns of WWII.  Item 29
(Decorations and Citations) shows he earned the Bronze Star Medal, American
Campaign Medal, European-African-Middle Eastern Campaign Medal, and the
WWII Victory Medal.

6.  Item 30 (Wounds Received in Action) of the applicant’s separation
document contains the entry “None”.  Further, there are no orders or
documents on file that show the applicant was ever wounded, injured in
action or awarded the PH and the applicant provides no such documents.

7.  The applicant does provide a Department of Veterans Affairs rating
decision, dated 15 September 2004, which shows that he was granted a
service connection for cold injury to his right and left foot with an
evaluation of 30 percent.

8.  The VA rating decision states, in effect, that the rating decision was
based on current medical examinations and evidence which stem from the
applicant’s report of recurrent pain, numbness and cold sensitivity in both
feet. However, the VA rating decision does not indicate that medical
documents prepared at the time the applicant sustained his injuries were
available or reviewed.

9.  Army Regulation 600-8-22 (Military Awards) prescribes the Army’s awards
policy. Paragraph 2-8 contains the regulatory guidance pertaining to
awarding the PH.  It states, in pertinent part, that in order to award a PH
there must be evidence that a member was wounded or injured as a result of
enemy action.  The wound or injury for which the PH is being awarded must
have required treatment by a medical officer and this treatment must be
supported by medical treatment records that were made a matter of official
record.

10.  Further, current Army awards policy does not provide provisions for
award of the PH based on frostbite injuries.  However, until 23 August
1951, the Army awards policy did authorize award of the PH to personnel who
were severely frostbitten while actually engaged in combat.  However,
trench foot was not considered a severe frostbite injury and did not merit
award of the PH under the policy in effect at the time.




11.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign
Credit Register) lists the unit awards received during World War II.  This
publication shows that during his assignment tenure, the applicant’s unit
(Company C, 280th Engineer Combat Battalion) was credited with
participating in the following three World War II campaigns: Ardennes-
Alsace, Central Europe and Rhineland.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH was carefully
considered.  However, by regulation, in order to award the PH it is
necessary to establish that a Soldier was wounded in action, the wound
required treatment by a medical officer and the record of medical treatment
must have been made a matter of official record.

2.  The VA rating decision, provided by the applicant, establishes that he
has a current condition which is consistent with a cold weather injury.
However, there is no documentation available in the applicant’s military
record, nor does he provide any documentation which clearly establishes
that he had frostbite of his feet during his service in WWII, and that
these injuries were as a result of combat action and were classified as
"severe."

3.  The available evidence in this case provides no corroboration of the
applicant's claim that he was wounded or injured in action.  Thus, although
the veracity of the applicant’s claim that he was injured while serving in
the ETO during WWII is not in question, the regulatory burden of proof
necessary to support award of the PH has not been satisfied in this case.
As a result, the requested relief must be denied in the interest of all
those who served during WWII and who faced similar circumstances.

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

5.  Records show the applicant should have discovered the error or
injustice now under consideration on 10 September 1946.  Based on
establishment of the Board on 2 January 1947, the time for him to file a
request for correction of any error or injustice expired on 1 January 1950.
 However, he 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 failure to file in this case.

6.  The evidence of record confirms the applicant’s entitlement to the
European-African-Middle Eastern Campaign Medal with 3 bronze service stars.
 Adding this award to his record is an administrative matter that does not
require Board action.  Thus, such correction of his 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

__mkp___  __reb___  __lmb___  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 there is an administrative error in the
applicant's records that should be corrected.  Therefore, the Board
requests that the ABCMR Support Division - St. Louis administratively
correct the applicant's record by amending Item 33 (Decorations and
Citations) of his WD AGO 53-98 by adding the European-African-Middle
Eastern Campaign Medal with 3 bronze service stars.



                                  Margaret K. Patterson
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040009592                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050825                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107.0015                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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