RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:  27 July 2004
      DOCKET NUMBER:  AR2004100678


      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. Lee Tinsley                   |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin Meyer                  |     |Chairperson          |
|     |Mr. Thomas O’Shaughnessy          |     |Member               |
|     |Ms. Eloise Prendergast            |     |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 he presently receives compensation for
“frozen feet” and believes that his injuries warrant the Purple Heart.

3.  The applicant provides a copy of his WD AGO Form 53-55 (Enlisted Record
and Report of Separation), a copy of his Department of Veterans Affairs
(VA) disability letter, dated 19 September 2003, and extracts from “The
Bulge Bugle”, a Veterans of the Battle of the Bulge publication.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 5 December 1945.  The application submitted in this case
is dated 26 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 also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines that it would be in the interest of justice to do
so.  The ABCMR has elected to conduct a substantive review of this 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 WD AGO Form 53-55 (Enlisted Record and Report of
Separation) shows that he was inducted on 10 March 1942 and entered active
duty the same date.  He served in European-African-Middle Eastern Theater
of Operations from 5 August 1944 to 21 November 1945.  He was honorably
separated from active duty on 5 December 1945.

4.  The applicant’s WD AGO Form 53-55, which is authenticated in his own
hand, does not show the Purple Heart as an authorized award.  Item 34
(Wounds Received in Action) of his WD AGO Form 53-55 contains the entry,
“NONE.”

5.  While the applicant was assigned to the 631st Tank Destroyer Battalion,
the unit received occupation credit for Germany.  Therefore, he is entitled
to correction of his WD AGO 53-55 to show award of the Army Occupation
Medal with Germany Clasp.

6.  A DA Form 1577 (Authorization for Issuance of Awards) shows the
applicant was issued the award of the Army of Occupation Medal with Germany
Clasp.  The Army of Occupation Medal with Germany Clasp not been entered on
his WD AGO Form 53-55.

7.  In a request, submitted by the Department of Veterans Affairs, dated
10 June 2002, it was discovered that the applicant’s records were
involved in the 1973 fire and therefore, there is no evidence of the
applicant being treated for frostbite of the feet.

8.  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, and the
medical treatment must have been made a matter of official record.
Paragraph 2-8b(5)(a) of this regulation states, in part, that “Frostbite or
trench foot injuries” do not “qualify for award of the Purple Heart.”

9.  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.

10.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign
Participation Credit Register), dated 6 July 1961, shows, among other
information, occupation credit during World War II.  This document shows
the unit to which the applicant was assigned, the 631st Tank Destroyer
Battalion, received occupation credit for Germany for the period from 2
May to 30 October 1945.

DISCUSSION AND CONCLUSIONS:

1.  At the time in question, frostbite was a basis for award of the Purple
Heart.  However, in the absence of evidence that the applicant was
diagnosed with frostbite, there is insufficient evidence upon which to base
award of the Purple Heart in this case.

2.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on10 December 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.  The
applicant did not file within the ABCMR’s 3-year statute of limitations.
However, since award of the Purple Heart is not governed by a statute of
limitations, it is appropriate to waive failure to timely file in this
case.

3.  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 2 of the BOARD
DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mm___  ___ts_  ___ep___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 concerning award of the Purple Heart.

2.  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 award of the Army of Occupation Medal with Germany Clasp.




            ___Melvin Meyer____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100678                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040727                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19451205                                |
|DISCHARGE AUTHORITY     |AR 615-365 (15 DEC 44)                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY W/NOTE                             |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  107  |Purple Heart                            |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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