IN THE CASE OF:	  

		BOARD DATE:	       18 December 2008

		DOCKET NUMBER:  AR20080012292 


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 award of the Purple Heart.

2.  The applicant states he suffered from frostbite during the Battle of the Bulge and as a result of this was reclassified to limited service.

3.  The applicant provides copies of his WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge), a 13 January 1945 Battle Casualty Report, an 18 January 1945 Casualty Message Telegram, a 5 January 1945 Casualty Reporting memorandum, 8 pages of medical treatment records, one page from the applicant's WD AGO Form Number 24-3 (Service Record Insert), a 12 August 1945 affidavit from the applicant, and a 27 August 1945 memorandum from the 28th Infantry Division Personnel Affairs Officer. 

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 service records were damaged and partially lost in the fire at the National Personnel Records Center in 1973.  However, the available service medical records are sufficient to allow the Board to conduct a fair and impartial review of this case.  

3.  The applicant entered active duty on 13 February 1943.   

4.  An untitled document shows the applicant's status as "MIA [missing in action] - 17 December 1944 - Luxembourg."  

5.  Service medical records for the period 26 December 1944 through 25 January 1945 show the applicant was treated for frostbite of his feet.

6.  On 26 December 1944 the applicant was transferred from the 4th Armored Division to the 104th Evacuation Hospital.

7.  A 26 December 1944 Medical Department Form Number 52b, completed by the 104th Evacuation Hospital, lists the applicant's condition as frostbite, moderate, incurred in the line of duty and that he was entitled to the Purple Heart (EPH).

8.  A 5 January 1945 Casualty Reporting memorandum changed the applicant's status from MIA to LIA (lightly wounded in action).

9.  A 13 January 1945 WD AGO Form 0365 (Battle Casualty Report) shows that the applicant was LIA on 17 December 1944.

10.  An 18 January 1945 Casualty Message Telegram was sent to the applicant's mother stating the applicant had been "slightly injured in action" in Luxembourg on 17 December 1944. 

11.  On 12th August 1945, in preparation of his release from active duty, the applicant prepared an affidavit stating that he had been awarded the Bronze Star Medal and was entitled to award of the Purple Heart for injuries sustained in action with the enemy.

12.  In a 27 August 1945 memorandum, Captain L. R. C____, Personal Affairs Officer, Casual Detachment, 1325th Service Command Unit, Indiantown Gap Military Reservation, submitted a request to award the applicant the Purple Heart.  He states that the applicant had served in Headquarters Battery, Division Artillery, 28th Infantry Division from 8 October 1944 until he was hospitalized on 26 December 1944.  He notes that during the Ardennes offensive, the applicant had been trapped behind enemy lines for 4 days and contracted a case of frostbite to his feet that required hospitalization.  The applicant's medical records at the 162nd General Hospital in England lists his medical condition as frostbite, not trench foot.  

13.  A WD AGO Form 24-3 shows that the applicant was favorably considered for the Good Conduct Medal on 24 September 1945.

14.  The applicant was honorably discharged on 27 September 1945.

15.  His WD AGO Form 53-55 provides the following information:

	a.  departure from the Continental U.S. on 8 October 1943 for Wales [one of the staging points for the "D-Day" invasion] with return to the U.S. on 20 June 1945;

	b.  participation in the Normandy, Northern France, Rhineland, and Ardennes-Alsace campaigns; 

	c.  award of the Bronze Star Medal, the European-African-Middle Eastern Campaign Medal with four bronze service stars, and the Expert Marksmanship Qualification Badge with Carbine Bar; and

	d.  lists his military occupational specialty as 228, Surveying Instrument Man.

16.  Army Regulation 600-8-22 (Military Awards), in pertinent part, provides the following:

	a.  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; and 

	b.   the Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified.  

17.  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.

18.  Associated with an Office of the Surgeon General's opinion are excerpts from an Army historical document discussing the award of the Purple Heart for frostbite injuries.  It makes clear numerous specific points including the following:  The term “element” (included from the beginning) meant weather.  The governing regulation and policy were not always the same.  Both policy and enforcement varied from time to time and place to place and were not consistently applied even in adjacent major European commands.  The regulation normally authorized the Purple Heart for frostbite while in combat and sometimes excluded the award for trenchfoot while in combat.  The Medical Department resisted administering a policy they could not control; in part, because initial diagnosis was very difficult yet the symptomatic development of individual conditions invited re-diagnosis; in part, because the ultimate degree of permanent disability had virtually nothing to do with the initial cause; in part, because training and enforcement of prevention rested with line commanders; and finally, because initial diagnosis, while extremely difficult, was almost always made by medical personnel who were intimately familiar with both the weather and the tactical situation, but rear echelon doctors tended to change the diagnoses for whatever reasons met their needs. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he suffered from frostbite during the Battle of the Bulge and is entitled to the Purple Heart.

2.  The applicant was listed as missing in action for at least 4 days in December 1944 and either at the time he returned to his unit or shortly after was hospitalized for moderate frostbite to his feet.  

3.  The Battle Casualty Report and the telegram to his mother states that he suffered from a wound while in action with the enemy.  

4.  Additionally, the 104th Evacuation Hospital treatment record states he is entitled to the Purple Heart.

5.  Based on the above findings it is shown that the applicant sustained a "wound" (frostbite) while engaged in combat and is entitled to award of the Purple Heart.

6.  The applicant was favorably considered for award the Good Conduct Medal, three days prior to his separation.  It is reasonable to conclude that he still met the requirements for the award at the time of his separation.  Therefore, it is appropriate to award the applicant the Good Conduct Medal (first award) for the period 13 February 1943 through 27 September 1945.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X __  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board unanimously determined during their review that the available evidence is sufficient to warrant a recommendation for partial relief.  As a result the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding the applicant the Good Conduct Medal (first award) during the period from 13 February 1943 to 27 September 1945 and amending his DD Form 214 to add this award.

2.  However, notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the Purple Heart.  While "severe" frostbite was a justification for award of the Purple Heart during the applicant's period of service, documentation shows his status was listed as "lightly wounded in action" and "frostbite, moderate."  Moderate frostbite should not be considered as a "wound" that would qualify an individual for a Purple Heart.  The frostbite did not cause his discharge for medical reasons.



      __________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)                                         AR20080012292



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ABCMR Record of Proceedings (cont)                                         AR20080012292


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