IN THE CASE OF:	  

		BOARD DATE:	        31 MARCH 2009

		DOCKET NUMBER:  AR20090001197 


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 that he be awarded the Purple Heart.

2.  The applicant states that during the Battle of the Bulge he was knocked unconscious by the explosion of a German 88mm tank cannon.  The explosion rendered him unconscious and he was left half-buried in the snow until he was found by members of his unit.  He goes on to state that he sustained a laceration to the left front part of his forehead which was sutured at the field hospital before he was sent to England for treatment and possible amputation of his legs.  Fortunately, the new antibiotic drugs that he was given were able to reverse the process of blood poisoning and his legs were saved.

3.  The applicant provides a three-page letter explaining his application, a copy of his WD AGO 53-55 (Enlisted Record and Report of Separation - Honorable Discharge), a copy of his WD AGO Form 100 (Separation Qualification Record), a copy of Veterans Administration (VA) Form P-80a (Award of Disability Compensation or Pension), dated 20 June 1946, a copy of his VA (now known as the Department of Veterans Affairs) Rating Decision, dated 15 August 2006, three letters from a doctor of psychiatry and neurology, and excerpts from the history of the 346th Infantry Regiment in World War II (WWII).

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 (NPRC) in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant was inducted into the Army on 25 June 1943.  He resided in Brooklyn, New York and entered active duty in New York on 15 November 1943 and was assigned to Company L, 346th Infantry Regiment, 87th Infantry Division.

4.  He completed his training as a rifleman and was staged at Camp Kilmer, New Jersey on 10 October 1944 until his unit received its Port Call to the New York Port of Embarkation in Brooklyn.

5.  He deployed with his unit to the European Theater of Operations (ETO) on 17 October 1944.  He arrived in England on 12 November 1944 and staged for movement to France.

6.  He participated in the Ardennes, Central Europe, and Rhineland campaigns and on 21 December 1944, he was hospitalized for a battle injury diagnosed as "Trench Foot."  He remained in the hospital for 81 days and was released on 5 March 1945.

7.  He departed the ETO on 13 March 1946 and was transferred to Fort Dix, New Jersey, where he was honorably discharged on 29 March 1946.  He had served 2 years, 4 months, and 15 days of total active service and was awarded the Combat Infantryman Badge, the European-African-Middle Eastern Campaign Medal, the Good Conduct Medal, and the World War II Victory Medal.  Block 34 of his WD AGO Form 53-55 "Wounds Received in Action" contains the entry "None." 

8.  The VA Form P-80a, dated 20 June 1946, which was provided by the applicant with his application shows that he was awarded a 10% (percent) disability compensation pension for "Trench Feet."

9.  The VA Rating Decision, dated 15 August 2006, shows that he was awarded a 70% disability rating for Post-Traumatic Stress Disorder (PTSD) and 30% each for frostbite of both feet.  The combined disability rating is not provided on the documents submitted by the applicant.

10.  Army Regulation 600-45 (Awards), in effect at the time, provided in pertinent part, that the Purple Heart was awarded for a wound sustained as a result of hostile action.  A wound was described 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 definition of "wound," the word "element" referred to weather and permitted award to personnel severely frostbitten while engaged in combat.  Trench foot was not considered as meriting the award.  Additionally, the wound or injury required treatment by medical personnel and the treatment must have been made a matter of record.

11.  Army Regulation 600-8-22 currently serves as the authority for award of the Purple Heart.  It provides, in pertinent part, that the Purple Heart is authorized for concussion injuries caused as a result of enemy generated explosions.  It is not authorized for frostbite or trench foot injuries.

DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant's claim that he sustained a concussion from an enemy explosion of a tank round and subsequently was treated for a cold-weather injury to his legs is not in doubt, there simply is insufficient evidence of record to substantiate his claim. 

2.  Unfortunately, the destruction of his records in the 1973 fire at the NPRC, coupled with the passage of time (60+ years), makes it difficult at best to ascertain exactly what happened in his case.

3.  It is noted that information obtained from hospital admission cards created by the Office of the Surgeon General, Department of the Army for the period of 1942 to 1945 shows that the applicant was admitted to the hospital for treatment of trench foot.  Additionally, he was awarded a VA Disability Pension rated at 10% effective 29 March 1946, for trench feet.  This information was current at the time and occurred before his military records were destroyed.

4.  Although the applicant has recently been granted additional VA disability compensation for PTSD and frostbite of both feet, he has provided no evidence to show that he was in fact treated for frostbite or a concussion during WWII.

5.  Therefore, in the absence of sufficient evidence to show that he was in fact treated for a concussion and/or frostbite during WWII, there appears to be no basis to award him the Purple Heart at this time.

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 the United States during World War II.  The applicant and all Americans should be justifiably proud of his service in arms.



      _________XXX______________
               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)                                         AR20090001197



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ABCMR Record of Proceedings (cont)                                         AR20090001197



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