IN THE CASE OF:	

		BOARD DATE:	  12 March 2009

		DOCKET NUMBER:  AR20090001042 


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, through his elected representative, reconsideration of the Board's denial of his request for the Purple Heart (PH). 

2.  The applicant states, through his elected representative, that it is apparent that the Board did not read the exhibits provided in his original application.  Also, the reason for denial is different each time the applicant's request is considered.  The applicant had been awarded the Bronze Star Medal (BSM) for heroism, and the language for that award notes that the action for which he was recognized took place while under fire, which is contrary to what the Board stated in its original consideration of the applicant's case.  The applicant's elected representative continues that the Board cited regulations in effect in 1995 rather the regulations in effect at the time of the incident and that he has affidavits from Soldiers who were awarded the PH for frostbite.  The elected representative cites the documents and audio/visual media as evidence of the ferocity of the fighting the applicant was involved with at the time of the incident for which he was recognized.  

3.  The applicant provides the orders awarding him the BSM for Heroism.

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 AR20070012397 on 1 April 2008.
2.  The applicant's elected representative's contention that regulations in effect at the time of the incident were not cited by the Board and that the applicant's BSM for heroism proves that the Board was in error in its conclusion are new arguments and require that the Board reconsider the applicant's request.

3.  The applicant's military records show that he entered active duty on 26 October 1943 as an officer, served in the European Theater of Operations from 25 October 1944 to 4 June 1946, and was honorably released from active duty on 28 August 1946 in the rank of first lieutenant.

4.  In its first consideration of this case, the Board found that:

	a.  General Orders Number 491, 78th Infantry Division, dated 25 September 1945, awarded the applicant the BSM for heroic achievement in connection with military operations against the enemy on 3-5 January 1945 in the vicinity of Bickerath, Germany.  The applicant, leader of a weapons platoon, accompanied assaulting elements of his company in an attack on a well-defended pillbox and troop shelter in the Siegfried Line defenses.  Deep snow, open terrain, and intense cold complicated the advance.  However, under severe enemy fire, the applicant accurately directed mortar fire on the enemy positions and, on the last day of the three-day action, remained on the right flank as the company withdrew, aiding in giving covering fire and in the evacuation of a wounded aid man.  His courage and military skill were in accordance with the highest military traditions.

	b.  The After Action Report (AAR) for the 311th Infantry Regiment for the month of January 1945 describes the heavy combat action that occurred during the period from 5 to 7 January 1945.  This report discusses the attack at 10:30 a.m. on 5 January by Company B on two enemy pillboxes.  At 8:25 a.m. on 
6 January, Company B was relieved by Company A.  There is no further mention of Company B in this AAR.  

	c.  An Admission and Disposition Roster, dated 11 January 1945, lists the applicant, then a second lieutenant, infantry, assigned to Company B, 311th Infantry Regiment, as transferred to the 108th Evacuation [Hospital] with a hernia inguinal right [right side area of the groin] recurrent [returning at intervals].  The roster identifies causes for required medical attention as W [wounded], BI [battle injury], or Disease.  The applicant's entry shows the cause for his medical care as "disease."



	d.  In a letter dated 28 February 2007, the Chief, Military Awards Branch, United States Army Human Resources Command, Alexandria, Virginia, stated that Department of Defense Policy and Army regulations allow for a one time reconsideration of a previously approved award.  It further stated that in March and December 2002, the Army Decorations Board reconsidered a request to upgrade the applicant's Bronze Star Medal with "V" Device for Valor to the Silver Star.  That board determined that the degree of action and service rendered did not meet the strict criteria for the proposed award.  Based on this determination, the recommendation was disapproved.  With regard to award of the Purple Heart, the letter stated that the applicant's injuries sustained in combat were caused by his own exertion when attempting to move the bodies of his fallen comrades.  Hence, his injuries were not the direct result of enemy action and did not qualify for award of the Purple Heart.

5.  In its first consideration of this case, the Board concluded that the evidence of record clearly shows that the applicant suffered from a recurring hernia and was sent for medical attention.  However, there is no substantiating evidence showing that this injury was sustained as a direct result of enemy action.  His contention that he is entitled to award of the Purple Heart because he became injured while moving the bodies of his fallen comrades on the battle field is not sufficient.  There is no evidence showing that the enemy was directing fire at him while moving his fallen comrades.  Therefore, the applicant's request for award of the Purple Heart should be denied.

6.  Army Regulation 600-45, dated 22 September 1943, Change 6, paragraph 16, states that 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 the result of a hostile act of the enemy or while in action in the face of the enemy.  The word "element" as used in this definition refers to weather and permits award to personnel severely frostbitten while actually engaged in combat.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's BSM for heroism is for actions he took between 3-5 January 1945.  The 311th Infantry Regiment's AAR for the month of January 1945 describes the heavy combat action that occurred during the period from 5 to 7 January 1945.  There is no further mention of Company B in this AAR.  An Admission and Disposition Roster, dated 11 January 1945, shows that the applicant was admitted for a hernia on that date.  Therefore, the applicant was not wounded on the date of action cited in his BSM for heroism.


2.  Documents show the applicant was under fire from 3-5 January, his unit was involved in heavy combat action from 5-7 January, and he was hospitalized on 11 January.  As such, there is no evidence to show that the applicant was under fire when he sustained his hernia.

3.  As for the contention that being under enemy fire is not a prerequisite for award of the PH at the time the applicant was wounded as evidenced by veterans who were awarded the PH for frostbite, Army Regulation 600-45, dated 22 September 1943, Change 6, paragraph 16, states that 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 the result of a hostile act of the enemy or while in action in the face of the enemy.  The word "element" as used in this definition refers to weather and permits award to personnel severely frostbitten while actually engaged in combat.  The key points in the regulatory requirements for the PH during World War II are that the wound has to be caused by an outside force and has to have been incurred while actually engaged in combat.  There is no evidence that the applicant was wounded by an outside force or that he was in action in the face of the enemy when he had his hernia.

4.  As for the contention that the applicant has been denied the PH for different reasons, the Chief, Military Awards Branch, United States Army Human Resources Command, Alexandria, Virginia, stated the applicant's injuries sustained in combat were caused by his own exertion when attempting to move the bodies of his fallen comrades.  Hence, his injuries were not the direct result of enemy action and did not qualify for award of the Purple Heart.  In its first consideration of this case, the Board concluded that there is no substantiating evidence showing that the applicant's injury was sustained as a direct result of enemy action and there is no evidence showing that the enemy was directing fire at him while moving his fallen comrades.  While the reasons for denial illustrate the different authority of the entities denying the request, the reasons for denial are consistent.  The Human Resources Command, which is bound by Army regulations, provided a text book reason for the denial.  The Board's conclusion was based on the extraordinary authority of the ABCMR to grant relief when the Board concludes that it is in the interest of equity or justice to grant relief.  For example, it was within the Board's authority to consider granting relief if the applicant could show that he sustained a hernia while being overrun by hostile forces because he picked up a wounded Soldier and carried him to safety.  While such a scenario would not be in keeping with the strict requirements of a PH, the Board would be empowered to grant such a request in the interest of justice.


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 AR20070012397, dated 1 April 2008.



      _________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)                                         AR20090001042



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ABCMR Record of Proceedings (cont)                                         AR20090001042



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