RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2008
	DOCKET NUMBER:  AR20080001239 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 for wounds received while in combat and award of the Purple Heart 1st Oak Leaf Cluster for wounds received while in captivity.

2.  The applicant states that he was a forward observer and battalion liaison officer with the 16th Armored Field Artillery, 90th Armored Division during the Battle of the Bulge.  The weather was extremely cold.  He spent the entire week of 16 through 22 December 1944 on the front lines day and night.  Due to snow and extremely freezing cold weather his feet were wet and cold.  He believes he suffered from frostbite during the Battle of the Bulge.

3.  The applicant states that he was captured on 22 December 1944 and spent the next 15 days or so marching from daylight to dark.  They had to sleep in bombed out buildings or on the ground.  They were marching to Poland.  On at least two nights, they had below zero weather.  His shoes were wet.  His feet got so cold that sometimes his feet were very red, sometimes white, and were very sore and cold.  Their German captors consistently refused them medical help.  After two weeks, they were loaded into box cars so cold the frost was inside     the cars.  They had no heat and nothing to keep them warm.  He lost about       30 pounds.  He feels certain that he suffered frostbite both during the Battle of Bulge and as a prisoner of war (POW).  To this day he suffers from cold feet trying to sleep, even while wearing socks or an extra blanket over his feet.

4.  The applicant provides the documents listed as Exhibits A through L as Evidence Submitted by the Petitioner.

CONSIDERATION OF EVIDENCE:

1.  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 it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s military records are not available to the Board for review.  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 or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant apparently enlisted in the Army National Guard on 5 October 1939 and entered active duty on 10 February 1941.  

4.  The applicant was honorably discharged on 24 February 1943 to accept a commission.  He entered active duty as a second lieutenant on 25 February 1943.  He arrived in the European Theatre of Operations on 26 August 1944.

5.  On 22 December 1944, the applicant was captured by the Germans.  He apparently escaped while in Poland, made contact with the Russian Army, and was sent on to the Allies and then on to America on or about 9 April 1945.

6.  On 29 December 1945, the applicant was honorably released from active duty.  His WD AGO Form 53-98 (Certificate of Service) shows he participated in two campaigns and was awarded the Silver Star, the American Defense Service Medal, the American Campaign Medal, the European-African-Middle Eastern Service Medal, and the World War II Victory Medal.

7.  The applicant was honorably discharged from the Army on 30 June 1948.

8.  The applicant provided a Department of Veterans Affairs (VA) Prisoner of War Protocol Examination, dated 8 June 2000.  The Examination noted that the applicant had suffered from frostbite of the feet and possibly the hands.  The applicant related the circumstances of his capture and transport under extremely cold conditions.  He recalled that his hands and feet were very cold, that they did hurt, that they may have been red and possibly white at other times.  He could not recall numbness specifically, and could not recall any skin peeling or ulceration.  He related that ever since then his feet have gotten cold very easily.  He did not describe any chronic skin or toenail problems, although the toenails have thickened over the years.  He had not had specific foot perspiration, but has had excessive perspiration over his whole body for many years.  He had no history of neuropathy.  He had no history of arthritis in the toes, fingers, or ankles other than (in) a thumb joint.  He had no skin problems or color changes in the feet and was not aware of any circulation problem.

9.  On 12 February 2001, the VA awarded the applicant a 10 percent disability rating each for frostbite residuals of the left and right foot.  
10.  The applicant provided an information paper on frostbite from the McKinley Health Center.  The information paper stated that frostbite can be a serious condition.  Serious cases of frostbite have been known to kill and damage tissue to the extent that amputation has been required.

11.  The applicant provided a legal opinion provided in an Air Force Board for Correction of Military Records (AFBCMR) wherein a pilot was shot down in June 1944 and captured by the Germans.  During the course of his captivity he was impressed into several forced marches and as a consequence he sustained severe frostbite in both hands and both feet and was currently rated as            100 percent disabled by the VA.  The AFBCMR’s decision was not provided.

12.  Army Regulation 600-45 (Decorations), which governed the award of Army decorations until 23 August 1951, 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.

13.  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 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.)

14.  Army Regulation 600-8-22 (Military Awards) provides for award of the POW Medal.  The POW Medal was authorized on 8 November 1985 and is awarded to individuals who in past armed conflicts were taken prisoner or held captive.

15.  Army Regulation 600-8-22 authorizes award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation.  Authorized bronze service stars will be worn on the appropriate campaign or service medal, including the European-African-Middle Eastern Campaign Medal. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been carefully considered.  Unfortunately, it does not appear that he met the eligibility criteria for award of the Purple Heart for frostbite injuries incurred either while he was in combat or while he was a POW.
2.  The regulation at the time provided for award of the Purple Heart to personnel who were severely frostbitten while actually engaged in combat.

3.  The applicant provided an information paper on frostbite which stated that frostbite can be a serious condition.  The information paper went on to state that serious cases of frostbite have been known to kill and damage tissue to the extent that amputation has been required.

4.  The applicant provided a VA Prisoner of War Protocol Examination, dated       8 June 2000.  The Examination noted that he had suffered from frostbite of the feet and possibly the hands.  However, the applicant could not recall numbness specifically and could not recall any skin peeling or ulceration.  He did not describe any chronic skin or toenail problems.  He had no history of neuropathy and had no history of arthritis in the toes, fingers, or ankles other than (in) a thumb joint.  

5.  Regrettably, the available evidence indicates that the applicant’s frostbite injuries were of insufficient severity to warrant award of the Purple Heart.

6.  The applicant did meet the eligibility criteria for award of the POW Medal, and this award should be added to his WD AGO Form 53-98.  He was also credited with participation in two campaigns, meeting the eligibility criteria for wear of two bronze service stars on his European-African-Middle Eastern Campaign Medal.  His WD AGO Form 53-98 should be amended to reflect this fact.

7.  Evidence shows that the applicant’s records contain administrative errors which do 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 FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__tsk___  __jlp___  __dwt___  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 concerned.

2.  The Board determined that administrative errors in the records of the individual concerned should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to amend his WD AGO Form 53-98 to add the POW Medal and to show he is eligible to wear two bronze service stars on his already-awarded European-African-Middle Eastern Campaign Medal. 

3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.




      __             TSK    _____
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080001239


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508