IN THE CASE OF:	  

		BOARD DATE:	  28 October 2008

		DOCKET NUMBER:  AR20080010397 


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, that he be awarded the Purple Heart. 

2.  The applicant states, in effect, that he was hospitalized in December 1944 for bilateral trench foot/frozen feet.  At that time, he was told by a general (name unknown) that he would be awarded the Purple Heart.  He has been trying to get it ever since.  He also states that he was in two hospitals during a 7 day period in 1944 at which he was treated for bilateral trench foot. 

3.  Between 14 and 17 December 1944, he was transferred from his unit (460th AAA [Antiaircraft Artillery] Bn [Battalion] Aid Station) to the 684th Clearing Company, 53rd Medical Battalion, near Heppenbach (1-mile North, in the vicinity of the town of Hepschied), Belgium, on 14 December 1944 (this hospital was overrun by mechanized German forces on 17 December 1944 (The Battle of the Bulge) and he fled the hospital on foot.    

4.  Between 17 and 20 December 1944, he ended up with the Rehabilitation Section, 4th Convalescent Hospital near Huy, Belgium.  He was treated there unitl he returned to his unit on 20 December 1944.

5.  The applicant provides a copy of his WD AGO Form 53-55 (Enlisted Record and Report of Separation); two copies of morning reports; and several medical documents in support of his request.



COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel remains silent.

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 were lost or destroyed in the National Personnel Records Center fire of 1973.  Records available to the Board were obtained from alternate sources and show he was inducted on 16 January 1943 and entered active duty on 23 January 1943.  He was trained in military occupational specialty (MOS) 601 as a Cannoneer.  He was assigned to Battery C, 460th AAA AW (Automatic Weapons) Battalion.  He served in the European Theater of Operations (ETO).  He was honorably separated on 21 December 1945.

3.  The applicant’s WD AGO Form 53-55 shows that he was credited with participation in five campaigns during World War II.  He was awarded three Overseas Service Bars; the American Campaign Medal; the European-African-Middle Eastern Campaign Medal, with one silver service star; the Good Conduct Medal; the World War II Victory Medal; and the Marksman Marksmanship Qualification Badge, with Rifle Bar (M1 Rifle).  His discharge document does not show the Purple Heart or any additional awards.

4.  Item 34 (Wounds Received In Action), of the applicant’s WD AGO Form      53-55, which was authenticated in his own hand, shows the entry "NONE."

5.  The applicant provided several medical documents which shows that he was admitted to the hospital on 14 December 1944 for trench foot, bilateral, slight, due to exposure to wetness and coldness for 8 hours prior to admission.  He was provided convalescent leave as a result of his diagnosis. 


6.  The applicant provided a copy of his unit's morning reports, dated 15 December and 20 December 1944, which shows that he was admitted to the hospital and was returned to duty.

7.  The applicant provided a copy of a daily journal that shows various entries for the period 18 to 25 December 1944.

8.  On 18 July 2006, the Chief, Personnel Service Support Division, Military Awards Branch, Army Human Resources Command (AHRC), prepared a memorandum to a Member of Congress (MOC), concerning the applicant’s desire to obtain an award of the Purple Heart.  The AHRC informed the MOC of the criteria for award of the Purple Heart.  The AHRC indicated that during World II and the first year of the Korean War, Soldiers requiring hospitalization for severe frostbite, incurred while engaged in combat with the enemy, were eligible to receive the Purple Heart, provided their injuries occurred subsequent to 12 November 1943.  The severity of the frost bite had to be officially documented in medical records.  Authorization of the Purple Heart to personnel severely frostbitten, while actually engaged in combat, continued through World War II and Korea, up to August 1951.  

9.  The AHRC reviewed the Surgeon General's hospital admission records for the World War II era, and regrettably, did not find an entry for the applicant.  Without evidence that the applicant was treated for wounds received as a result of enemy action and that his injuries were made a matter of official record, award of the Purple Heart could not be authorized.  The AHRC provided a detail list of the items that the applicant needed to provide to their office to determine his entitlement to the Purple Heart.  Accordingly, the AHRC recommended that the applicant contact the National Personnel Records Center and request a review of his Official Military Personnel File so that he may locate copies of the documents listed in this memorandum. 

10.  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.  This regulation also provides that there is no statute of limitations on requests for award of the Purple Heart.




11.  AR 600-45 (Decorations), Change Number 4, in effect at the time of the applicant's service provides, in pertinent part, that the Purple Heart is awarded to members of the armed forces of the United States and to civilians who are citizens of the United States serving with the Army, who are wounded in action against an enemy of the United States, or as a direct result of an act of such enemy, provided such wound necessitates treatment by a medical officer.  (For the purpose of awarding the Purple Heart, a wound is defined as an injury to any part of the body from an outside force, element, or agent sustained as a result of a hostile act of the enemy or while in action in the face of the enemy.)  The regulation continues, "In connection with the definition of 'wound' above, the word 'element' refers to weather and permits award to personnel severely frostbitten while actually engaged in combat (emphasis added).  Trench foot will not be considered as meriting award (emphasis added)."

DISCUSSION AND CONCLUSIONS:

1.  To be awarded the Purple Heart, substantiating evidence must be presented to show that the applicant sustained severe frostbite while actually engaged in combat.  The frostbite must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

2.  The evidence in this case shows the entry, "NONE" in Block 34 (Wounds Received in Action), of the applicant's WD AGO Form 53-55.  

3.  The evidence of record shows that the applicant was admitted to the hospital twice during World War II and was treated for bilateral trench foot due to exposure to wetness and cold temperatures for 8 hours prior to admission on 
14 December 1944.  However, the diagnosis of bilateral trench foot does not rise to the level of frostbite and the trench foot was described as being "slight."  Based on provisions of the regulation in effect at the time, the applicant does not merit award of the Purple Heart for "slight" trench foot.  

4.  Based on the evidence that is available, the applicant is not entitled to award of the Purple Heart and correction of his WD AGO Form 53-55 to show this award.

5.  The applicant alleges that at the time of his hospitalization in 1944 during World War II he was told by a general (name unknown) that he would be awarded the Purple Heart.  However, there is no evidence, and the applicant has provided no evidence, to support his allegations.



6.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  __x_____  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 for correction of the records of the individual concerned.




      _______ _  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)                                         AR20080010397



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ABCMR Record of Proceedings (cont)                                         AR20080010397



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