IN THE CASE OF:	  

		BOARD DATE:	       21 May 2009

		DOCKET NUMBER:  AR20090002749 


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 a reconsideration of his application for award of additional Purple Hearts.

2.  The applicant states, in effect, that he received wounds and injuries as a German prisoner of war (POW).

3.  The applicant provides copies of a 17 January 1945 Western Union Telegram; a 15 April 1945 Western Union Telegram; Headquarters, 110th U.S. General Hospital, General Orders Number 17; a 13 February 1946 Veterans Administration Form P-80a (Award of Disability Compensation or Pension); and a 9 April 2001 Department of Veterans Affairs (VA) Disability Rating decisional document.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous considerations of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080003327 on 17 July 2008 and Docket Number AR20080015224 on 8 January 2009.

2.  The applicant has provided additional documentation that was either not available and/or not addressed fully at the time of either of the two previous Board reviews.  Most notable is the fact that the information used by the VA for awarding the applicant service connection for several conditions was taken from the applicant's Army service medical records.  These factors constitute significant new material warranting additional Board review.  Therefore, as an exception to policy, this case should be reconsidered.

3.  It is believed that the applicant's military personnel records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from documents provided by the applicant and the VA.

4.  The applicant’s available records show that he was inducted into the Army of the United States on 24 May 1943 and entered active duty on 7 June 1943.

5.  He is shown to have departed the United States en route to the European theater of operations (ETO) on 21 October 1944 and arrived in the ETO on 29 October 1944.

6.  A Western Union Telegram, dated 17 January 1945, notified the applicant's mother that he was listed as missing in action as of 16 December 1944.

7.  A Western Union Telegram, dated 15 April 1945, notified the applicant's mother that he had been returned to military control on 29 March 1945 and was hospitalized.

8.  The available documents show different dates for the applicant's capture.  It is shown variously as 16, 18, or 19 December 1944.

9.  Headquarters, 110th U.S. General Hospital, General Orders Number 17, dated 22 May 1945, awarded the applicant the Purple Heart for wounds received on 18 December 1944.  The orders do not identify the wound for which the applicant was awarded the Purple Heart, but is most likely for a wound to his hand noted in a 13 February 1946 VA disability award letter.

10.  The applicant returned to the continental United States on 25 June 1945 and was honorably discharged from active duty on 9 December 1945.  His WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) shows he was awarded the Purple Heart, American Service Medal, European-African-Middle Eastern Service Medal, Army Good Conduct Medal, World War II Victory Medal, Combat Infantryman Badge, and Sharpshooter Marksmanship Qualification Badge with Carbine Bar.  He is shown to have participated in the Ardennes, Central Europe, and Rhineland Campaigns.

11.  A VA Form P-80a, dated 13 February 1946, shows the applicant was awarded a 60-percent disability evaluation for a nervous condition and shrapnel wound to the left hand with muscle involvement.  He was denied service connection for a left varicose, dysentery, jaundice, enteritis, frozen feet, concussion of spine, concussion, malnutrition, denterocolitis, deviated septum, hepatitis, and chronic prostatis.

12.  A DA Form 1577 (Authorization for Issuance of Awards), dated 19 January 1989, shows that the Army Reserve Personnel Center, St. Louis, Missouri, authorized the issuance of the POW Medal.

13.  A DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) was issued on 4 November 1996 to show award of the Bronze Star Medal with first oak leaf cluster.  The available records do not contain information related to the basis for this correction.

14.  In March 2009, the applicant, through his Congressman, requested that the VA send copies of all available service medical records directly to the Board.  The VA did not provide the actual service medical records.  It did provide an additional copy of its 4 April 2001 disability rating decisional document.

15.  The 4 April 2001 VA disability rating decisional document states that the applicant's service medical records (emphasis added) were used in part to award the applicant his VA disability ratings.  The decisional document included the report of an 8 February 2001 medical examination that states that the service medical records show the following:

	a.  4 days after his return to Army control, the applicant underwent an examination for low back pain on 3 April 1945;

	b.  an abbreviated clinical record, dated 10 April 1945, shows he was treated for low back pain due to an injury sustained in captivity when the German hospital he was in was bombed and that he complained of the residuals of frozen feet;

	c.  on 29 April 1945 he complained of soreness and weakness of his left shoulder due to abuse as a POW; the examination found a weakness in the abductor muscles of the shoulder.  The applicant stated that he had sustained an injury to this shoulder when a German Soldier wrenched it;

	d.  his 8 December 1945 discharge examination shows a diagnosis of contusion of the spine, complaints of the residuals from cold weather injuries, weakness in the abductor muscles of the shoulder, a shrapnel wound to the left hand with muscle involvement, and a nervous condition; and

	e.  during his 8 February 2001 VA examination, the applicant described the situations that caused the frostbite of his feet and the report indicates the service medical records indicate post-captivity treatment for this condition.

16.  During World War II and the Korean War the Purple Heart was not awarded to Soldiers who had been injured while in captivity or while being taken captive.  These injuries were considered to be the result of war crimes and not the result of a legal action of war.  War Department policy at that time required that wounds must have been received in action against the enemy as the result; of enemy action.  Executive Order 11016, dated 25 April 1962, provided more latitude with respect to award of the Purple Heart to POWs as well as the authority to award the decoration to wounded Soldiers even in the absence of a formal declaration of war.  The issue as to whether this change in policy would be implemented retroactively to POWs from World War I, World War II, and the Korean War was considered several times.  Initially it was decided that the change in policy would not be retroactively implemented.  It was concluded that it would be inappropriate for the Department of Defense to retroactively change the standards and, in effect, countermand the decisions of the past leadership.  However, as part of the National Defense Authorization Act of 1996, Congress authorized award of the Purple Heart 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.

17.  Public Law 104-106, section 621, states in pertinent part, that for purposes of award of the Purple Heart, the Secretary concerned (as defined in section 101 of Title 10, U.S. Code) shall treat a 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 is wounded on or after that date while held as a POW (or while being taken captive).

18.  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 is authorized.

19.  Army Regulation 600-8-22 (Military Awards) also states that individuals wounded or killed as a result of “friendly fire” in the “heat of battle” will be 

awarded the Purple Heart as long as the “friendly” projectile or agent was released with the full intent of inflicting damage on or destroying enemy troops or equipment.

20.  Army Regulation 600-8-22 (Military Awards) provides the following pertinent information:

	a.  the POW Medal was authorized on 8 November 1985 and is awarded to individuals who were taken prisoner or held captive;

	b.  an oak leaf cluster will be awarded to be worn on the medal or ribbon for each subsequent award of the Purple Heart.  Not more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent; and

	c.  a bronze service star based on qualifying service is authorized for each campaign listed in appendix B of this regulation or listed in item 32 (Battles and Campaigns) of the WD AGO Form 53-55.  This regulation states that authorized bronze service stars will be worn on the appropriate campaign or service medal including the European-African-Middle Eastern Campaign Medal.

21.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214 or DD Form 215.  In pertinent part, it states once a DD Form 214 has been issued, a new separation document will not be reissued except for the following reasons:

	a.  when directed by proper appellate authority, Executive Order, or by the Secretary of the Army;

	b.  when it is determined that the original DD Form 214 cannot be properly corrected by issuance of a DD Form 215 or if the correction would require issuance of more than two DD Forms 215; or

	c.  when two DD Forms 215 have been issued and an additional correction is required. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant states, in effect, that he believes he is entitled to additional Purple Hearts for injuries received as a POW.

2.  From the best available records, the applicant is shown to have been a POW from 16 December 1944 through 29 March 1945.  He was authorized award of the POW Medal in 1989 but it is not clear if a correction to his separation document was made.  Therefore, it is appropriate to correct the records to show this award at this time.

3.  The applicant is authorized award of the Bronze Star Medal based on the award of the Combat Infantryman Badge during World War II.  The rationale for a second Bronze Star Medal is not readily apparent; however, a DD Form 215 was issued to reflect a correction to show award of the Bronze Star Medal with one oak leaf cluster.  

4.  The applicant is shown to have served during three campaigns during World War II and is authorized to wear three bronze service stars on his European-African-Middle Eastern Campaign Medal.

5.  The Board's previous decisional documents state that the wound for which the applicant received the Purple Heart could not be determined.  This determination constitutes an error in fact.

6.  At the time of his separation from the service the Purple Heart was not authorized for any wounds or injuries a Soldier sustained while held as a POW.  The only qualifying wound documented as occurring other than during his period of captivity was a wound to his hand.  Therefore, this is the wound for which the initial Purple Heart had to have been awarded.

7.  The Board's previous decisional documents state that there was a lack of evidence to show that the applicant had sustained injuries while in captivity.  This also is an error in fact.

8.  The April 2001 VA decision specifically states that their review of the applicant's service medical record (emphasis added) shows the applicant sustained injuries to his back and left shoulder as well as complaining of frostbite or cold injuries to his feet and hands that were sustained or worsened while in captivity.  He is shown to have undergone several military medical examinations and/or received treatment for these conditions following his return to military control and prior to his release from active duty.

9.  While it would have been better if the VA had provided the actual copies of the applicant's service medical records in their possession, their official documentation clearly shows that the service medical records were available to 

the VA medical personnel at the time of their examinations and the rendering of their 2001 disability rating decision.  The specific references to these records is 
sufficient to show that the applicant did sustain the multiple injuries while in captivity, that he received U.S. military medical treatment for these injuries and conditions, and that the treatment was made a matter of official military record.

10.  The available information shows that the applicant sustained an injury to his back and possibly to his ribs as a result of a beam hitting him when the German hospital he was in was bombed by Allied Forces.  The references to his broken ribs are not found to have been occurred at a time separate from his back injury. Therefore, it must be presumed to have occurred at the same instant or from the same missile, force, explosion, or agent as his back injury and not as a separate cause and treated for the purpose of award of the Purple Heart as a single item.  

11.  The injuries to his back and ribs should be considered to be the result of "friendly fire" and, in accordance law, is to be treated in the same manner as a member who is wounded in action as the result of an act of an enemy of the United States.  Accordingly the applicant should be awarded a Purple Heart for these injuries.

12.  The applicant's left arm injury is reported as the result of abuse by a German Soldier.  The applicant was treated for this injury following his repatriation.  Under the current criteria, the applicant is entitled to award of the Purple Heart for this injury. 

13.  The VA records state that the applicant complained of residuals of frostbite to his feet during at least two military medical examinations.  His complaints of residuals of frostbite to his hands is not clearly shown to been treated following his repatriation and before his release from active duty.  The probability that it occurred at the same time as his frostbitten feet is most likely and as such should be presumed to have occurred at the same instant or from the same missile, force, explosion, or agent as his frostbitten feet, not as a separate cause, and treated for the purpose of award of the Purple Heart as a single item.  The available information and records show he did receive treatment for frostbite of the feet following his release from captivity.  At the time of the applicant's release from active duty, frostbite was a condition for which the Purple Heart was authorized.  Therefore, it is appropriate to award the applicant the Purple Heart for this injury.


14.  Based on the facts and findings above it is appropriate to correct the applicant's records to show all of his awards as: the Bronze Star Medal with one oak leaf cluster, the Purple Heart with three oak leaf clusters, the Army Good Conduct Medal, the American Service Medal, the European-African-Middle 
Eastern Service Medal with three bronze service stars, the World War II Victory Medal, the POW Medal, the Combat Infantryman Badge, and the Sharpshooter Marksmanship Qualification Badge with Carbine Bar.

BOARD VOTE:

____X___  ____X  __  ___X___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20080003327 on 17 July 2008 and Docket Number AR20080015224 on 8 January 2009.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  awarding the applicant three additional Purple Hearts (the Purple Heart with three oak leaf clusters); 

	b.  voiding the previously issued DD Form 215; and

	c.  issuing a new DD Form 215 that:

		(1)  deletes all entries in the awards portion of his WD AGO Form 53-55; and 

		(2)  adds the applicant's awards as:  the Bronze Star Medal with one oak leaf cluster, the Purple Heart with three oak leaf clusters, the Good Conduct Medal, the American Service Medal, the European African Middle Eastern 

Service Medal with three bronze service stars, the World War II Victory Medal, the POW Medal, the Combat Infantryman Badge, and the Sharpshooter Marksmanship Qualification Badge with Carbine Bar.




      ____________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)                                         AR20090002749



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