IN THE CASE OF:	  

		BOARD DATE:	  25 August 2009

		DOCKET NUMBER:  AR20090002803 


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 reconsideration of his earlier request for award of the Purple Heart.

2.  The applicant states he was denied award of the Purple Heart because the Board did not recognize the wounds inflicted on him by an armed enemy of the United States during ground action in Korea on or about November 1951, which is a significant administrative error.  After 55 years, the Department of Veterans Affairs (VA) determined he suffered stress during the same period his combat wounds were reported.  The VA placed him on 30-percent disability for that rating.  On his original application, he states he lacked proper judgment in reporting significant health problems incurred during combat, such as knee replacement, atrial fibrillation, frostbite, and impairing arthritis.  He mentions the physicians who can affirm his frostbite damage, atrial fibrillation, and knee damage.  He has provided compelling evidence from his dermatologist and the previous sworn statements from two officers who confirm his wounds were inflicted during action with an armed enemy of the United States.  The applicant states he treated his own frostbite and the frostbite was not reported.  The podiatrist from the VA hospital mentioned that the applicant's frostbite damage had been diagnosed in all ten toes.

3.  The applicant provides the following documents in support of his request for reconsideration:

	a.  a copy of his previous application, dated 18 May 2007, with supporting statements from a dermatologist and fellow officers;

	b.  a statement from his dermatologist, dated 23 September 2008;

	c.  progress notes from the VA, dated 8 December 2008; and

	d.  a newspaper article entitled, "Aircrews' frostbite qualified them for Purple Heart."

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 AR20070010513 on 3 January 2008.

2.  The applicant has provided new arguments, a statement from his dermatologist, progress notes from the VA, and a newspaper article as new evidence that will be considered by the Board.

3.  The applicant provided a statement from his dermatologist, dated 23 September 2008, who stated he had seen the wounds on the applicant's hands and face and believe they were secondary to shrapnel that hit him during combat in Korea in 1952.

4.  The applicant provided a progress note from a VA podiatrist, dated 8 December 2008.  The document indicates the applicant had neuritis [general inflammation of the peripheral nervous system] of toes, secondary to cold injury/frostbite, late effects.  The applicant was instructed on the condition and recommendations on pain prevention.

5.  The applicant also provided a copy of a newspaper article entitled, "Aircrews' frostbite qualified them for Purple Heart" which indicated that the Purple Heart was sometimes awarded to aircrew members who suffered frostbite during World War II during combat missions.  The applicant highlighted, "The official view today is that these injuries are accidental or are caused by individual fault."

6.  The applicant's service record shows he had prior enlisted service and was appointed as a commissioned officer on 25 November 1950.  His highest rank attained was lieutenant colonel.

7.  The applicant served in the Republic of Korea from 31 August 1951 through 21 July 1952 and in Vietnam from 28 December 1967 through 23 December 1968.

8.  There are no medical records in the available military personnel file that show the applicant sustained wounds as a result of hostile action or that show he was treated for wounds sustained as a result of hostile action.  The applicant's retirement physical, dated 19 October 1972, does not reference any wounds sustained as a result of hostile action.

9.  The applicant's name is not listed in the Korean War Casualty File.

10.  The applicant was retired from active duty on 31 January 1973.

11.  Army Regulation 672-5-1 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have been treated by military medical personnel, and the medical treatment must have been made a matter of official records.

12.  While award of the Purple Heart for frostbite injuries is currently prohibited, such injuries were previously a basis for the award.  Until 23 August 1951, Army Regulation 600-45, which governed the award of Army decorations, stated that for the purpose of considering an award of the Purple Heart, a "wound" was 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 was authorized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was denied award of the Purple Heart because the Board did not recognize the wounds inflicted on him by an armed enemy of the United States during ground action in Korea on or about November 1951.  However, there is no evidence or medical documents which verify the applicant was injured as a result of hostile action in Korea.

2.  The applicant's statement from his dermatologist who treated him on 23 September 2008 attesting to the fact that he had seen the wounds on the applicant's hands and face and believed they were secondary to shrapnel that hit him during combat in Korea is noted.  However, this statement alone is not sufficient to meet the regulatory burden of proof necessary to support award of the Purple Heart in this case.

3.  The progress note from a VA podiatrist indicated the applicant had neuritis of toes, secondary to cold injury/frostbite.  The newspaper article provided by the applicant referenced aircrew members who suffered frostbite during World War II who were entitled to award of the Purple Heart.  Unfortunately, regulations prohibited awarding the Purple Heart for frostbite injuries after 23 August 1951.

4.  The applicant has not provided sufficient evidence with which to confirm he sustained wounds as a result of hostile action in Korea.

5.  Therefore, there is insufficient evidence on which to base 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:

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 AR20070010513, dated 3 January 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)                                         AR20090002803



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ABCMR Record of Proceedings (cont)                                         AR20090002803



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