RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 December 2005
      DOCKET NUMBER:  AR20050006992


      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. Hubert S. Shaw, Jr.           |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Richard G. Sayre              |     |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 award of the Purple Heart.

2.  The applicant states that he sustained cold weather injuries to both
feet in Luxembourg in December 1944 during the Battle of the Bulge.  He
contends that his "frozen feet" would not have occurred if not for the
combat conditions brought on by the German Army.

3.  The applicant provides a copy of an undated newspaper article and his
Department of Veterans Affairs (DVA) records which include a portion of his
service medical records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 8 December 1945, the date of his separation from the Army.  The
application submitted in this case is dated 26 February 2005.

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 WD AGO Form 53-55 (Enlisted Record and Report of
Separation-Honorable Discharge) shows that he entered active duty on
3 October 1942 and was assigned to the Combat Engineer Branch.  This
document shows that he served in the European Theater of Operations from
4 April 1944 through 23 November 1945 and was honorably separated on
8 December 1945.

4.  Item 32 (Decorations and Citations) of his WD AGO Form 53-55 does not
contain an entry for the Purple Heart.

5.  Item 33 (Wounds Received in Action) of his WD AGO Form 53-55 contains
the entry "NONE."

6.  Item 56 (Signature of Person Being Separated) contains the applicant's
signature.
7.  The applicant's DVA medical files contain copies of documents from the
applicant's service medical records.  A Form Number 52b-Medical Department,
dated 24 December 1944, shows under "DIAGNOSES" the entry:  "PHYSICAL
EXHAUSTION, FROSTBITE, MILD."

8.  A Medical Supplemental Record, dated 24 December 1944, contains the
entries:  "Recd 104 E. H. 1415 24 Dec 44" [Received 104th Evacuation
Hospital, 2:15 PM, 24 December 1944].  "Diag LIA [Diagnosis lightly injured
in action] - Frost bite feet Physical exhaustion."

9.  A Medical Record, dated 6 January 1945, shows that the applicant was
received at the 114th General Hospital on 6 January 1945.  This document
contains under "DIAGNOSIS" the following entries:  "Frostbite not concurred
in.  Trench foot, bilateral, moderate.

10.  The available records contain the applicant's WD AGO Form 38 (Report
of Physical Examination of Enlisted Personnel Prior to Discharge, Release
from Active Duty), dated 8 December 1945.  This separation medical
examination contains the following entries:

      a.  Item 11 (List all significant diseases, wounds and injuries).
"Trench feet, both feet, bothered with this since Dec., 1944, still bother
quite a bit."

      b.  Item 22 (Feet).  "Temperature of toes is cool on both feet;
pulsations good."

11.  A DVA medical evaluation, dated 15 November 1946, shows that the
applicant was diagnosed as follows:  "Incurred in service in WW II, No
percent (0%) 7122 - TRENCH FOOT, FROZEN FEET, No combat disability."

12.  A DVA Report of Physical Evaluation, dated 14 February 1947, lists the
applicant's medical history.  This document contains the entry:  "Hosp.
Dec. 1944, Trench foot, 2 months transferred to Air Corps."

13.  A DVA Neurological and Orthopedic Examination, dated 14 February 1947,
shows that the applicant was diagnosed as follows:  "1693 - Trench foot,
bilateral, mild. (frozen feet)."

12.  A DVA Rating Decision, dated 10 March 1947, states the applicant was
rated "Ten per cent (10%)" based on rating code "7122 TRENCH FOOT, FROZEN
FOOT."

13.  A DVA Rating Decision, dated 2 February 1973, stated that the
applicant requested increased evaluation for his foot condition.  The DVA
rating official noted that the applicant has a "10 percent evaluation for
trench foot and/or frozen foot condition."  The DVA official found that
there had been no treatment for his service connected foot condition and
the increased rating was not granted.

14.  A subsequent DVA Surgical Examination, dated 13 February 1974, stated
under "DIAGNOSES" the following entry:  "6.  Significant residuals from
frost bite feet, not found."

15.  A DVA rating decision, dated 23 October 2003, discontinued the 10
percent rating for "7122 TRENCH FOOT, FROZEN FOOT" effective 7 July 2003
and rated him at 30 percent for residuals of cold weather injury to the
right and left lower extremities effective 23 October 2003.

16.  The applicant provided a newspaper article without a date from the
"Log Cabin Democrat" about the applicant's service in World War II.  In
this article the applicant recounted that he and fellow soldiers "reached a
first aid camp on Dec. 23, 1944, where he was treated for trench foot."

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart for
cold weather injuries to both feet sustained in Luxembourg in December 1944
during the Battle of the Bulge.

2.  Military medical records show that the applicant was diagnosed
initially on 24 December 1944 with mild frostbite.  Subsequent diagnosis on
6 January 1945 non-concurred with the diagnosis of frostbite and diagnosed
the applicant with "Trench foot, bilateral, mild."

3.  The applicant's separation medical examination stated that the
applicant sustained trench foot to both feet which bothered him since
December of 1944.

4.  Subsequent examination and ratings by the DVA indicate that the
applicant significant residuals from frostbite were not found and, as a
result, increased ratings were not granted.  In October 2003, the DVA
rendered a rating decision for cold weather injuries to the applicant's
right and left lower extremities and terminated the rating decision for
residuals of frozen feet.

5.  The evidence in this case indicates that the applicant sustained cold
weather injuries to both feet diagnosed by military medical authorities as
"trench foot."  Evidence of record shows that the applicant was diagnosed
by medical authorities at the time of his separation and subsequently by
DVA medical authorities with residuals of "trench foot."  The applicant
himself indicated that he was treated on 23 December 1944 for trench foot.

6.  The award regulation, in effect at the time of the applicant's cold
weather injury, did not authorize award of the Purple Heart for trench
foot.  That regulation did authorize award of the Purple Heart for "severe
frostbite while engaged in combat."  In the absence of a preponderance of
evidence which shows that the applicant sustained "severe frostbite while
engaged in combat," there is insufficient basis for award of the Purple
Heart in this case.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 December 1945, the date of his
separation from active duty.  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 3-year statute of limitations; however,
it is appropriate to waive failure to timely file in this case based on the
fact there is no statute of limitations on requests for award of the Purple
Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_RS_____  _JM____  __ML______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that it would be in the interest of justice to
excuse the applicant's failure to timely file this application because
there is no statute of limitations governing requests for award of the
Purple Heart.

2.  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 to show award of
the Purple Heart.




                                     __John T. Meixell___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006992                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051201                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |NC                                      |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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