IN THE CASE OF:	

	BOARD DATE:	  17 July 2008

	DOCKET NUMBER:  AR20080003327 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, award the Purple Heart with first oak leaf cluster for wounds received in combat and that he be awarded the Purple Heart with second oak cluster for wounds received while in captivity.

2.  The applicant states, in effect, that he experienced severe frostbite to his extremities while in combat at the Ardennes.  His hands and feet continuously got cold and wet when exposed to snow.  While he was a Prisoner of War (POW) he was hospitalized at a German Hospital in Geralstein, Germany, which was bombed on 25 December 1944, causing him to fall four floors sustaining broken ribs and a concussion to his spine which left him paralyzed for several days.  

3.  The applicant provides a copy of his WD AGO 53-55 (Enlisted Record and Report of Separation-Honorable Discharge; a copy of a memorandum from the Department of Veterans Affairs; a four page self statement, a copy of a page of Army Regulation 600-45, dated 23 September 1943; a copy of a page of Army Regulation 600-45, dated 3 May 1944; and a copy of Public Law 104-105, dated 
10 February 1966 in support of his application.

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.  This case is being considered using reconstructed records, which primarily consist of the applicant's Separation Document WD AGO 53-53; the DD Form 215 (Correction of DD form 214, Certificate of Release or Discharge From Active Duty), and a DA Form 1577 (Authorization for Issuance of Awards).

3.  The applicant’s available records show that he was inducted into the Army of the United States on 24 May 1943.  He completed basic combat training, and was awarded military occupational specialty 152 (Photographer).  His record also shows that during his active duty tenure, he earned the European African Middle Eastern Service Medal; the Good Conduct Medal; the American Service Medal; the World War II Victory Medal; and the Purple Heart.  He was assigned to the Headquarters Company 422nd Infantry Regiment.  He departed the United States en route to the European Theater of Operations (ETO) on 21 October 1944 and arrived in the ETO on 29 October 1944.  The applicant’s WD AGO Form 53-53 shows that he participated in the Ardennes, the Central Europe, and the Rhineland Campaigns.  The applicant returned to the continental United States on 25 June 1945 and was honorably discharged from active duty on 
9 December 1945.

4.  Item 33 (Decorations and Awards) of the applicant’s WD AGO 53-55, dated 
9 December 1945, shows the applicant was awarded a Purple Heart for injuries received during his tour of duty.

5.  Item 34 (Wounds Received in Action) of the applicant’s WD AGO 53-55 contains the entry “ETO Date Unknown” which indicates he was wounded/injured in action during the period of service covered by the separation document.  


6.  The DA Form 1577 (Authorization for Issuance of Awards) dated 19 January 1989, shows that the Assistant Adjutant General, National Personnel Records Center, St. Louis, Missouri, authorized the issuance of the POW Medal.

7.  The DD Form 215, dated 4 November 1996, shows that the applicant’s record was corrected to show award of the Bronze Star Medal with first oak leaf cluster.

8.  The applicant provides a copy of a VA Rating Decision, dated 2 August 2001. This document indicates that the applicant was granted service connection for residuals of left shoulder pain secondary to rotator cuff injury; residuals of cold weather injuries to both feet and both hands; and residual fractures of the left ribs.  This document states that the applicant’s service medical records dated 
10 April 1945 and 8 December 1945 document the Veteran’s claim of frozen feet after his liberation as a POW.  This document documents the fact that the applicant had a back injury while a POW and that the circumstances under which the applicant received the cold weather injuries were as the applicant presented them at the time.  

9.  There were no military medical treatment records on file or provided by the applicant, and a request for Hospital Admission Cards created by the Office of The Surgeon General (OTSG) for World War II pertaining to the applicant produced 1 record of admission or treatment of the applicant for postatitis in May 1944.  

10.  Army Regulation 600-8-22 (Military Awards) 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 by medical personnel, and the medical treatment must have been made a matter of official record.

11.  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.

12.  Award of the PH for frostbite injuries is currently prohibited; however, until 1951, Army Regulation 600-45, which governed the award of Army decorations, defined a “wound” as an injury to any part of the body from an outside force, element, or agent sustained while in action against an armed enemy or as a result of a hostile act of such enemy.  An “element” was further defined as weather and the award of the PH to personnel who were severely frostbitten while actually engaged in combat was authorized.  

13.  Public Law 104-106, Section 621, states in pertinent part, that for purposes of the award of the Purple Heart, the Secretary concerned (as defined in section 101 of title 10, United States Code) shall treat a former prisoner of war who was wounded before April 25, 1962, while held as a prisoner of war (or while being taken captive) in the same manner as a former prisoner of war who is wounded on or after that date while held as a prisoner of war (or while being taken captive). 

14.  Title 10, United States Code, Chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of a disability incurred while entitled to basic pay.  Sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to award of the Purple Heart with first oak leaf cluster for injuries received while he was in combat and a Purple Heart with second oak leaf cluster for injuries received while he was a POW during WWII was carefully considered.  However, there was insufficient evidence found to support this contention.  

2.  The evidence of record shows the applicant received a Purple Heart for wounds received in action in the ETO during his tour of duty.  

3.  The applicant’s claim that he suffers from cold weather related injuries to his hands and feet as documented by the VA Rating Decision provided, is not in question.  The applicant’s claim that he received back and rib injuries while a POW as documented by the VA Rating Decision provided, is also not in question. However, other than information related by him to VA officials, there is no evidence confirming he was severely frostbitten while engaged in combat or that he received additional injuries that resulted from enemy action while he was a POW.  

4.  The available evidence is insufficient to support award of the second and third award of the Purple Heart.  Even if the evidence was sufficient to support the award of the Purple Heart for the frostbite incurred in combat or the back injuries sustained while a POW, there would still be insufficient evidence to establish that either of these injures was not already recognized by the applicants first award of the Purple Heart.  
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  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 the United States during World War II.  The applicant and all Americans should be justifiably proud of his service in arms.




 _   _______   _X_____________
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080003327



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ABCMR Record of Proceedings (cont)                                         AR20080003327



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