RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        JANUARY 4, 2005
      DOCKET NUMBER:  AR2004101772


      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. Luis Almodova                 |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Karen A. Heinz                |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Mr. James B. Gunlicks             |     |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, reconsideration of his earlier
appeal to correct his military records by awarding him the Purple Heart.

2.  The applicant states, in effect, that in late March 1945, he declined a
Purple Heart as a result of injuries he sustained while he was assigned to
the 280th Engineer Battalion.  He was never issued a Purple Heart and it is
not indicated on his separation document.  He adds that at the age of 20,
that his injuries were not significant enough compared to the men that lost
their lives and limbs.

3.  The applicant provides a copy of eleven statements related to the time
and place of the incident in which he was allegedly wounded, to include
three letters from three physicians who are providing, or have provided,
medical treatment to the applicant for residual effects of the wounds he
allegedly sustained during World War II.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be awarded the Purple
Heart.

2.  Counsel states, in effect, that all aspects of the case are clearly
established and supported by the evidence, after the fact, despite the fact
that no medical records about the medical treatment he received on the day
of his injury are available.  The records included to support the
applicant's request, to include new evidence, and the letters of support
previously reviewed by the Board, are notarized and contain sufficient
point of contact information or documentation and enables the verification
of the matter under consideration; are consistent in theme and the
essential points support the story of the veteran's wounds as told in his
statement; and these letters form a basis for a credible reenactment of the
chain of events of the day on which the incident occurred.  Additionally,
counsel points out that the applicant is entitled to the award of three
bronze service stars to be affixed to his European-African-Middle Eastern
Campaign Medal to denote his campaign participation during World War II.

3.  Counsel provides a six-page memorandum of support detailing his
understanding of the case and his recommendation for award of the Purple
Heart to the applicant.
CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records that were
summarized, in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2001052769, on 12 April 2001.

2.  The three additional letters the applicant submitted with the request
for reconsideration, are new information that was not previously reviewed
by the Board.  They are new evidence; therefore, the Board must consider
them.

3.  In a letter, which the Board has not considered, dated 26 November
2003, addressed to, Whom it May Concern, a physician associated with
Orthopaedic Associates of West Florida, provides an update of medical
treatment received by the applicant since the initial consideration of the
applicant's request for award of the Purple Heart.  In an earlier letter,
dated 4 August 2000, the physician states that it was the applicant who
presented the facts related to his injury.  The physician adds that it may
well have been the fall from the 30-foot pole that may have triggered the
accelerated deterioration in his hips.  The Board previously considered
this 4 August 2000 letter.

4.  In his update letter, the physician states, in effect, that the
applicant has received additional treatments for degenerative arthritis
involving his lumbar spine.  The applicant is post-hip replacement for this
degenerative arthritis.  The physician continues by reiterating that it is
his belief, in effect, that these medical challenges resulted indirectly
from the injuries that the applicant suffered in World War II when he was
thrown from a pole approximately 30 feet in height, landing heavily on the
ground.

5.  In a letter, dated 20 August 2000, addressed to, Whom it May Concern, a
physician in Clearwater, Florida, states that the applicant has been a
patient of his for the past eight years for treatment of severe DJD
(Degenerative Joint Disease).  The physician attributed the severe DJD
bilaterally in his hips, which occurred secondary to a 30-foot fall from a
pole during his service in World War II.

6.  A physician at Bay Pines Veterans Administration Medical Center (VAMC)
states, in a Progress Note, dated 25 November 2003, written in support of
the applicant's request, that, based on the applicant's report, and other
letters she reviewed, her examination revealed degenerative changes to his
lumbar spine and old scarring to his right forearm and right leg/knee which
she believes is residual from his old wounds.  The Board previously
considered the other letters, which the Bay Pines physician reviewed.

7.  A copy of the applicant's WD AGO Form 38, Report of Physical
Examination of Enlisted Personnel Prior to Discharge, Release from Active
Duty or Retirement, which is available in the applicant's service personnel
records, in Item 10 (At the present time do you have any wound, injury or
disease which is disabling?  If answer is yes, list those conditions first
under Item 11), the applicant responded "no."

8.  In Item 11 (List all significant diseases, wounds, or injuries.  State
circumstances under which wounds or injuries were incurred and date of
onset) the following entry appears, "No history of Malaria, Syphilis, or
Dysentery. (a). Sprained ankle-Sept. 1945."  This injury was listed as
incurred in military service.

9.  The applicant was awarded service-connected disability compensation,
on 12 March 1946, for a wart on the sole of his foot.  There is no record
of compensation being approved for injuries the applicant alleges to have
sustained from the fall from the 30-foot pole when the 88mm shell exploded.

10.  In his request, the applicant, as well as all his eyewitnesses state
that he was injured, he received medical treatment, and that he declined a
Purple Heart for the injuries he sustained.

11.  The medical officer who treated the applicant immediately after he was
allegedly injured states that he cleansed and dressed the wound, and
administered a tetanus antitoxin.

12.  The applicant's medical and dental records are on file in the
applicant's service personnel records.  The dental records show that he had
extensive dental work performed while he was in service.  The medical
records, which include an entrance physical examination as well as a
separation physical examination, show that he received treatment for a
number of illnesses; however, there is no record of treatment for the
alleged fall from the 30-foot pole on explosion of the shell.

13.  A medical record dated 6 August 1943 shows that the applicant had
sustained a compound fracture of his left lower tibia, playing ball,
approximately 4 years [approximately 1939] before he was seen for medical
treatment on this date.  In 1939, the applicant was in a cast for two and a
half months.  One month after the cast was removed, he broke the same bone
again.  On 6 August 1943, his complaint was that he was experiencing pain
in his lower tibia.  These symptoms evolved about two weeks after playing
ball [about mid July 1943].

14.  On 9 August 1943, the applicant returned to the clinic with the same
complaint, of pain in his left leg.  He was referred for X-Rays.  No
evidence of a broken or fractured bone was found.  The applicant was
returned to duty.

15.  On 15 December 1943, the applicant was provided medical treatment.
The diagnosis was that his shoes were too small.  The applicant was again
seen on 28 December 1943.  He was complaining of pain from a blow he
received to his left side while playing football four days previously.  The
applicant was returned to duty.

16.  Army Regulation (AR) 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.

17.  The applicant departed the United States and served in the European
Theater of Operations (ETO) until he returned on 9 December 1945.

18.  While in the ETO, the applicant participated in the Ardennes,
Rhineland, and the Central Europe campaigns of World War II.  The
applicant's WD AGO Form 53-55 shows entitlement to the European-African-
Middle Eastern Campaign Medal, however, it does not show the three bronze
service stars to which the applicant is entitled for his campaign
participation.

19.  AR 600-8-22, in pertinent part, authorizes award of a bronze service
star, based on qualifying service, for each campaign listed in its Appendix
B and states that authorized bronze service stars will be worn on the
appropriate service medal, in this case, the European-African-Middle
Eastern Campaign Medal.

20.  AR 600-8-22 provides, in pertinent part, that the Army of Occupation
Medal is awarded for service of thirty consecutive days at a normal post of
duty in a qualifying location.  Personnel at a qualifying location as an
inspector, courier, escort, temporary or detached duty are precluded from
eligibility.  For award of the Army of Occupation Medal with Germany Clasp,
qualifying service must have occurred between 9 May 1945 and 5 May 1955 and
the European-African-Middle Eastern Campaign Medal must have been awarded
prior to 9 May 1945.
DISCUSSION AND CONCLUSIONS:

1.  The VA decisional document, as well as all other documents in the
applicant's request and service personnel records were reviewed.  The VA
decisional document shows that the applicant was granted service-connected
disability compensation for a wart on the foot and not for any injuries
that he allegedly sustained when he was "blown off the pole."  The VA
denied the applicant any compensation for the sprained ankle that he
claimed.

2.  By his own admission, and the admissions of his witnesses, the
applicant allegedly refused the Purple Heart when it was offered to him at
the time he was injured.

3.  The physician who treated the applicant alleges to have cleansed the
applicant's wounds, dressed them, and administered a tetanus antitoxin;
however, there is no mention by him that a record of this treatment was
made at the time the applicant was treated.

4.  In his service personnel records are a number of records indicating
that the applicant received medical treatments for other, more routine
reasons.  These were made a matter of record; however, it is noted that the
injuries and the treatment for the wounds he allegedly sustained when he
was allegedly wounded in action, a more serious situation, was not made a
matter of record, especially in view of the fact that a tetanus antitoxin
was administered.

5.  One of the key criteria for award of the Purple Heart is that the
medical treatment must have been made a matter of official record.  Absent
a record of the medical treatment he received, the applicant is not
entitled to award of the Purple Heart.

6.  While the VA may have reviewed the same evidence, the VA is guided by
its own policies and regulations and operates independently of the military
services. The VA administers benefits according to those policies and
regulations.  The VA's decision was made in the applicant's favor although
there were no records available for review based on that agency's
consideration of all available evidence, the applicant's statements, the
applicant's comrade's statements, and resolved all reasonable doubt in the
applicant's favor.  The fact that the VA granted a noncompensable service-
connected disability rating is a prerogative exercised within the policies
of that agency.  Decisions made by the VA have no
force or effects on the military services and conversely, decisions made by
the various branches of military services have no force or effect on
decisions made by the VA.

7.  Evidence shows that the applicant’s records contain administrative
error that does not require action by the Board.  Therefore, the Case
Management Support Division (CMSD), St. Louis, Missouri, will accomplish
administrative correction of the applicant's records as outlined by the
Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section
below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

jbg   ____  rld  _____  kh ______  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 to amend the decision of
the ABCMR set forth in Docket Number AR2001052769, dated 12 April 2001.

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 award the applicant three bronze service stars to be affixed
to his European-African-Middle Eastern Campaign Medal, to denote his World
War II campaign participation credit; and, awarding the applicant the Army
of Occupation Medal, with Germany Clasp.




                                  _____Karen A. Heinz    ___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004101772                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050104                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT IN PART                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  46   |107.0000                                |
|2.  61                  |107.0015                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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