RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 June 2007
	DOCKET NUMBER:  AR20070004214 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael J. Fowler

Analyst


The following members, a quorum, were present:


Ms. Margaret K. Patterson

Chairperson

Ms. Ronald D. Grant

Member

Ms. Rowland C. Heflin

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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  The counsel requests reconsideration of an earlier appeal that the applicant's records show award of the Purple Heart. 

2.  The counsel states, in effect, that while the applicant was incarcerated as a Prisoner of War (POW) he sustained frostbite to his feet, leg, hands, and arms that warrants the award of the Purple Heart.  

3.  The counsel argues that the applicant's previous case referred to the three-year statute of limitation for correction of his records.  However, no former POWs were awarded the Purple Heart until Congress passed legislation as part of the National Defense Authorization Act for Fiscal Year 1996 and that act makes the statute of limitation reason for denial mute.

4.  Counsel continues that it is a historical fact that during the Battle of the Bulge where the applicant was captured was one of the coldest winters in Europe on record.  Match that with poor treatment of prisoners and you would find that they all suffered from frostbite and malnutrition.  While the applicant's records only indicate treatment for malnutrition surely the Department of Veterans Affairs (DVA) does not award 100 percent disability without overwhelming evidence to support the claim.  

5.  At his separation physical, the applicant stood over six feet tall and weighed 
100 pounds.  How could the Army Board for Correction of Military Records (ABCMR) contend there is no evidence to show how or under what circumstances a Soldier had his limbs frozen?  The Board implies that the DVA decision shows no evidence that these injuries were a result of enemy action when clearly thousands upon thousands of men suffered that same fate of malnutrition and frostbite.

6. The applicant provides no additional documentation in support of this case.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060008677, on 9 January 2007.
2.  The applicant's contentions are new arguments that will be considered by the Board.

3.  On 16 June 1943, the applicant was inducted into the Army of the United States.  On 3 May 1944, the applicant departed the United States for duty in the European Theater of Operations.  His military occupational specialty was 533 (Demolition Specialist).  He was assigned to the 168th Combat Engineer Battalion.

4.  The applicant was captured by enemy forces and was a POW from 
21 December 1944 until his release on 25 April 1945.  

5.  The United States Army Office of The Surgeon General Hospitalization Listing for the year of 1945 shows that the applicant was treated for malnutrition upon his repatriation as a POW.  

6.  On 17 November 1945, the applicant was honorably separated from the military.

7.  On 19 March 1998, the DVA determined that the severity of the applicant's disability from frozen hands and feet had increased from ten to thirty percent, and granted an overall or combined evaluation of ninety percent disability from these service connected injuries.  

8.  Army Regulation 600-45 dated 23 September 1943, change 4 dated 3 May 1944, provided for award of the Purple Heart to members of the armed forces of the United States who were wounded in action against an enemy of the United States, or as a direct result of an act of such enemy, provided such wound necessitated treatment by a medical officer.  For the purpose of awarding the Purple Heart, a wound was defined as an injury to any part of the body from an outside force, element, or agent sustained as the result of a hostile act of the enemy or while in action in the face of the enemy.  In connection with the definitions of "wound", the word "element" referred to weather and permitted award to personnel severely frostbitten while actually engaged in combat.

9.  The National Defense Authorization Act for Fiscal Year 1996 authorized the award of the Purple Heart to persons wounded while held as POWs before       
25 April 1962.  The provision extends the current criteria for the Purple Heart to former POWs who were held prior to 25 April 1962 and suffered wounds or injuries at the hands of their captors.  (Previously, only those who became POWs after 25 April 1962 and were wounded while prisoners of foreign forces could be awarded the medal.)

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to award of the Purple Heart for cold weather injuries he received while a POW was carefully considered.  It is clear, from his argument of POW living conditions, that he along with fellow Soldiers faced severe conditions while a POW.  However, there is no evidence to show he was treated for severe frostbite while receiving medical treatment upon his repatriation.  Although the DVA increased his disability rating from ten to thirty percent for frozen hands and feet, the rating indicates that at the time his condition was not severe.

2.  Lacking evidence confirming that the applicant was treated for a severe frostbite injury he received while a POW, it must be concluded, in the interest of all those who served during World War II and who faced similar circumstances, that there is insufficient evidence to satisfy the regulatory burden of proof necessary to support award of the Purple Heart in this case.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__MKP  _  __RDG__  ___RCH_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 AR20060008677, dated 9 January 2007.




__ Margaret K. Patterson __
          CHAIRPERSON



INDEX

CASE ID
AR20070004214
SUFFIX

RECON

DATE BOARDED
14 JUNE 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
107.0015.0000
2.

3.

4.

5.

6.