IN THE CASE OF:	

		BOARD DATE:	  28 April 2009

		DOCKET NUMBER:  AR20090001073 


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 correction of his military records to show award of the Purple Heart.

2.  The applicant states, in effect, that he was issued the Purple Heart, but it is not listed on his WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) with the period ending 31 May 1946.  

3.  The applicant states during the winter of 1944 and into 1945, the weather was very harsh in the European Theater of Operations (ETO).  He was not equipped with the proper boots and socks for winter and his feet became cold and then numb as he walked through the frozen, crusty snow.  Many members of his unit suffered from cold injuries and they tried many methods of keeping warm to prevent hypothermia.  The applicant states that he stuck it out in the cold and never left the front line until the end of May 1945.  

4.  In June 1945, the applicant was treated at the 363rd Medical Battalion for an abscess infection of his left leg.  He was later transferred and admitted to the 116th Evacuation Hospital where he was administered penicillin for his leg infection.  The applicant states that during his stay at the hospital Joe Lewis visited and handed out paper to everyone at a ceremony at the hospital, and he received a paper stating that he was awarded the Purple Heart.  The applicant further indicated in a claim with the Department of Veterans Affairs (VA) in 2007, that an examination reported that it was possible his leg condition could be due to a cold injury. 

5.  The applicant states he was given the medal after his release from the hospital, while stationed in Berlin, Germany.  It was awarded without ceremony from his unit supply room.  The supply sergeant just handed it out when he saw his paperwork.  The applicant states that he does not have the document or remember what happened to it, whether he lost it, or whether it was given to the supply sergeant, who never gave it back.  

6.  The applicant provides:

	a.  his WD AGO Form 53-55 with the period ending 31 May 1946;

	b.  an Army of the United States Honorable Discharge certificate, dated 
31 May 1946;

	c.  five military medical documents, consisting of his admission, diagnoses, and treatment; 

	d.  two morning reports from D Company, 25th Infantry Regiment, dated 
11 and 12 April 1945;

	e.  two photos, consisting of the applicant walking in a column with Soldiers and a German Soldier surrendering; and

	f.  a VA Form 21-4138 (Statement of Claim), dated 7 September 2007.

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, this case is being considered using reconstructed records, which primarily consist of the applicant’s WD AGO Form 53-55, and five medical documents which include his admission, diagnoses, treatment, and a VA Form 21-4138, dated 7 September 2007.

3.  The applicant's WD AGO Form 53-55 with the ending period 31 May 1946 shows he was inducted into the Army of the United States on 28 January 1944 and entered active duty on 19 February 1944.  On 25 November 1944, he departed the United States for duty in the ETO. He arrived in the ETO on 
8 December 1944.

4.  The applicant provided five military medical documents, consisting of his admission, diagnoses, and treatment records.  The documents reveal he was treated on 27 June 1945 at the 363rd Medical Battalion for an abscess on his left leg.  He was transferred to the 116th Evacuation Hospital for an “acute abscess left leg - cause undetermined.”  On 6 July 1945, the applicant was returned to duty.  There is no evidence in the documents the applicant provided that show he was treated for cold injuries.

5.  The applicant departed the ETO on 19 May 1946.  He was honorably discharged on 31 May 1946.

6.  The applicant's WD AGO Form 53-55 with the period ending 31 May 1946 does not show award of the Purple Heart.  Item 34 (Wounds Received in Action) contains the entry "NONE."

7.  There are no general orders available that show the applicant was awarded the Purple Heart.

8.  The applicant provided a VA Form 21-4138, dated 7 September 2007.  In this document to the VA, he indicated that he was submitting supporting evidence to refute the VA denial of his claim by substantiating that his leg condition was service-connected from residuals of frostbite that occurred while he served in the ETO.  The applicant pointed out that a VA examination reported that it was possible that his leg condition could have been due to his claimed cold injury.  He believed that the VA should reverse its decision by granting his claim.

9.  Army Regulation 600-45, dated 23 September 1943, with change 4, dated 3 May 1944, provided for award of the Purple Heart to members of the armed forces of the United States who were wounded in action against an enemy of the United States, or as a direct result of an act of such enemy, provided such wound necessitated treatment by a medical officer.  For the purpose of awarding the Purple Heart, a wound was 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.  In connection with the definitions of "wound," the word "element" referred to weather and permitted award to personnel severely frostbitten while actually engaged in combat.  Thus until 23 August 1951, the regulation permitted the award of the Purple Heart to personnel who were severely frostbitten while actually engaged in combat.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to award of the Purple Heart for cold weather injuries he received while in the ETO was carefully considered.  It is clear the weather was very harsh in the ETO during the winter of 1944-1945.  However, there is no evidence to show he was treated for severe frostbite at the time.  The record shows he was treated for an abscess on his left leg during the period June through July 1945 and returned to duty.  It is unlikely the applicant could have endured a severe cold injury in December 1944-January 1945 if treatment was not rendered until June –July 1945.  

2.  There is no evidence confirming the applicant was treated for a severe frostbite injury that he received while in the ETO; therefore, it must be concluded that there is insufficient evidence to satisfy the regulatory burden of proof necessary to support award of the Purple Heart in this case.  

3.  Regrettably, in the absence of military records which show the applicant was treated for severe frostbite as a result of hostile action the military medical documents he provided are insufficient bases for award of the Purple Heart in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 our Nation.  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)                                         AR20090001073



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ABCMR Record of Proceedings (cont)                                         AR20090001073



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