IN THE CASE OF:	

		BOARD DATE:	  26 March 2009

		DOCKET NUMBER:  AR20080018269 


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, reconsideration of her earlier petition requesting that her deceased father, a former service member (FSM), be awarded the Purple Heart (PH).  

2.  The applicant states, in effect, that there are former Prisoners of War (POWs) of World War II experiencing an unbalanced scarcity of recognition for wounds incurred while held in captivity.  

3.  The applicant provides a self-authored letter to the Secretary of the Army and the 15 exhibits identified as enclosures in support of her request.  

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 AR20070005349, on 20 September 2007.  

2.  During its original review of the case, the Board found no evidence confirming that the FSM was wounded as a result of hostile action by enemy forces while he was in the Army.  

3.  The applicant submits a self-authored letter to the Secretary of the Army and 
15 enclosures as new evidence.  She argues that former Army Air Force personnel are being awarded the PH by the Air Force Board for Correction of Military (AFBCMR) for identical wounds experienced by Army ground troops.  She further argues that previous denial decisions rendered by the Army's Military Awards Branch on this case failed to recognize the authority to award the PH to former POWs for acts committed by the enemy while they were in captivity.  She also provides a legal opinion provided by a retired Air Force colonel to the AFBCR, who opined that a veteran who sustained severe frostbite in both hands and feet during several forced marches while a POW was entitled to receive the PH.  

4.  The FSM's military record is not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the FSM's records were lost or destroyed in that fire.  However, there were sufficient documents on file 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 original Record of Proceedings, the FSM's WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge), and the documents provided by the applicant.  

5.  The evidence shows the FSM was inducted into the Army of the United States and entered active duty on 18 February 1942.  He served in military occupational specialty (MOS) 050 (Cook), and served in the European Theater of Operations (ETO) from 28 February 1944 to 6 June 1945.  It also shows that he participated in the Ardennes, Northern France, and Rhineland campaigns of World War II.  It also shows that he was a POW from 19 December 1944 to 28 April 1945, and that he earned the Good Conduct Medal, POW Medal, American Campaign Medal, European-African-Middle Eastern Campaign Medal with 3 bronze service stars, and World War II Victory Medal. 

6.  The NPRC file contains an Office of The Surgeon General (OTSG) Hospital Admission Record, which shows the applicant was hospitalized in June of 1945 and diagnosed with and treated for dermatitis.  There are no medical treatment records on file confirming treatment for severe frostbite.  

7.  On 19 March 2004, in a response to a Member of Congress, The Adjutant General of the Army (TAG) stated, in pertinent part, that during World War II, the PH was authorized for Soldiers hospitalized for severe frostbite incurred while engaged in combat.  He further stated that the severity of the frostbite had to be officially documented in medical records and concluded that the FSM was not 
eligible for the PH because he did not incur his frostbite injury while engaged in combat, which was the requirement at the time.  This opinion was also taken by the Army Chief, Military Awards Branch, in a 27 July 2004 letter on this subject. 

8.  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 PH, 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.  

9.  Executive Order 11016, dated 25 April 1962, provided more latitude with respect to award of the PH to members who were POWs on or after 25 April 1962.  This executive order did not apply to World War II and Korea former POWs.  Section 521a of the National Defense Authorization Act (NDAA) of 1996, authorized award of the PH to any former POW who was wounded before 25 April 1962 while held as a POW or while being taken captive, in the same manner as a former POW who was wounded on or after that date.  

10.  Section 521b of the 1996 NDAA specifically stated that award of the PH for POWs under Section 521a shall be made in accordance with the standards in effect on the date of the enactment of this Act to persons wounded on or after 
25 April 1962.  

11.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-8 contains the current guidance applicable to award of the PH, which is also the applicable policy for award of the PH to POWs authorized in the NDAA of 1996.  It states, in pertinent part, that in order to support award of the PH there must be evidence confirming the wound for which the award is being made was received as a result of enemy action, that it required treatment by medical personnel, and a record of the medical treatment must have been made a matter of official record.  Paragraph 2-8h provides examples of wounds that clearly do not justify award of the PH.  These examples include frostbite or trench foot injuries.  

DISCUSSION AND CONCLUSIONS:

1.  Under the regulatory policy in effect at the time the World War II POW PH policy was implemented by the 1996 NDAA, the PH was not authorized for frostbite or trench foot injuries regardless of how they were incurred.  As a result, the applicable regulatory criteria necessary to support award of the PH has not been satisfied in the FSM's case.  

2.  Further, while it is possible that award of the PH could be justified as a matter of equity based on the PH regulatory policy in effect for severe frostbite during World War II, this would have to be supported by evidence that the applicant sustained a severe frostbite injury while a POW.  
3.  In addition, there would have to be evidence confirming the FSM was treated for severe frostbite by medical personnel.  Although there is an OTSG Hospital Admission Record in the NPRC file that shows the FSM was hospitalized and treated for dermatitis, there are no medical treatment records in the NPRC file or provided by the applicant that confirm the FSM ever suffered from or was treated for a severe frostbite injury he sustained while a POW.  Therefore, there is also insufficient evidence to support equity relief in this case.  

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

5.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of the FSM's service in arms.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20070005349, dated 20 September 2007.



      _________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)                                         AR20080018269



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ABCMR Record of Proceedings (cont)                                         AR20080018269


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