IN THE CASE OF:	  

		BOARD DATE:	       11 JUNE 2009

		DOCKET NUMBER:  AR20090003165 


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, in effect, award of the Purple Heart (PH). 

2.  The applicant states, in effect, that he suffered frostbite to his hands, feet, and face; and traumatic injuries to his knees from beatings with a rifle butt while he was held as a prisoner of war (POW) during World War II (WWII).

3.  The applicant provides a copy of his WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) in support of his request.

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 complete military record is 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.  The applicant's records were partially consumed in that fire.  However, there were sufficient documents on file for the Board to conduct a fair and impartial review of this case.  This case is being considered using the applicant's WD AGO Form 53-55 and a reconstructed NPRC record which consists of partially legible copies of documents recovered from the applicant’s original burned military record.  

3.  The remaining documents in the NPRC file show the applicant was inducted into the Army of the United States on 10 March 1943 and entered active duty on 17 March 1943.  He was trained in, awarded, and served in military occupational specialty (MOS) 610 (Gun Sergeant).

4.  The applicant's file also shows he arrived in the European-African-Middle Eastern Theater of Operations (EAMETO) on 25 September 1944.  The record contains a partially-burned Confidential Missing Report which shows the applicant's regiment came under attack by the German forces on 10 December 1944 and that he was reported missing in action (MIA) on 16 December 1944.

5.  The NPRC file also contains three partially-burned Battle Casualty Reports which show the applicant was reported MIA on 16 December 1944, returned to military control on 2 April 1945, and was evacuated to the United States on an unknown date.  It also contains a partially-burned Security Certificate for 
Ex-Prisoners of War which lists the responsibilities and rules to be followed by former POWs.  The applicant authenticated this document with his signature in April 1945.

6.  The applicant’s NPRC file contains two Results of Physical Examinations (Forms 2), dated 12 and 14 July 1945.  These documents both include the entry “frostbite, feet, symptomatic” under the “Summary of Physical Defects.” 

7.  On 18 November 1945, the applicant was honorably discharged from active duty.  The WD AGO Form 53-55 issued to him at that time shows he completed 2 years, 8 months, and 9 days of creditable active military service, of which 8 months and 7 days was foreign service.

8.  The applicant's WD AGO Form 53-55 also shows that he served in the EAMETO from 25 September 1944 to 21 April 1945.  Item 31 (Military Qualification and Date) shows he earned the Sharpshooter Marksmanship Qualification Badge with Rifle and Carbine Bars and the Combat Infantryman Badge (CIB).  Item 32 (Battles and Campaigns) show he was credited with participating in the Central Europe campaign of WWII.  

9.  Item 33 (Decorations and Citations) of the applicant's WD AGO Form 53-55 shows he earned the following awards during his active duty tenure:  EAME Campaign Medal, Army Good Conduct Medal (AGCM), WWII Victory Medal, and American Theater Ribbon.  Item 34 (Wounds Received in Action) contains the entry “None.”

10.  The applicant’s NPRC file also contains an NME Form 96 (Disposition Form), subject:  Decorations and Awards, dated 14 June 1949, issued by the Multiple Awards Unit, Decorations and Awards Section, which confirms the applicant's eligibility for the AGCM, CIB, EAME Campaign Medal with 3 bronze service stars, American Campaign Medal, WWII Victory Medal, Marksmanship Qualification Badge with Pistol Bar, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and Expert Marksmanship Qualification Badge with Tank Weapon Bar.  It also verifies the applicant was credited with participating in the Ardennes-Alsace, Rhineland, and Central Europe campaigns of WWII.  

11.  The NPRC file also contains Adjutant General Letter Orders, date stamped 
22 July 1952, which awarded the applicant the BSM based on his award of the CIB during WWII.

12.  Army Regulation 600-8-22 (Military Awards) prescribes the Army’s awards policy.  Paragraph 2-8 contains guidance on awarding the PH.  It states, in pertinent part, that each approved award of the PH must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act or international terrorist attack; the wound or injury must have required treatment by medical personnel; and the records of medical treatment must have been made a matter of official Army records.

13.  Award of the PH for frostbite injuries is currently prohibited; however, until 1951, 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” pertained to weather and the award of this decoration to personnel who were severely frostbitten while actually engaged in combat was authorized.

14.  Paragraph 2-8f of Army Regulation 600-45 further stated that for those who became POWs after 25 April 1962, the PH will be awarded to individuals wounded while prisoners of foreign forces, upon submission by the individual to the Department of the Army of an affidavit that is supported by a statement from a witness, if this is possible.

15.  The National Defense Authorization Act (NDAA) of 1996, authorized award of the PH retroactively to any former POW who was wounded before 25 April 1962, while being held as a POW or while being taken captive under the same standard as those wounded prior to 25 April 1962, as originally authorized.  

16.  Paragraph 2-9 of Army Regulation 600-8-22 contains guidance on award of the POW Medal.  The POW Medal is authorized for any person who was taken prisoner and held captive after 5 April 1917.

17.  Paragraph 5-13 of this same regulation governs award of the EAME Campaign Medal and it states, in pertinent part, that a bronze service star is authorized for each campaign a member participated in while serving in the EAMETO.

18.  Training Manual 12-235 (Enlisted Personnel – Discharge Procedures and Preparation of Separation Forms), in effect at the time, provided information for standardizing the preparation of the WD AGO 53-55.  It stated, in pertinent part, that for item 34, enter the date wounded and theater.  However, the example provided in this publication shows an entry including date of wound, theater of operation, type wound, and location of wound.

DISCUSSION AND CONCLUSIONS:

1.  Although there is no evidence supporting the applicant's claim that he sustained injuries to his knees as a result of being beaten with a rifle butt while a POW, there was medical evidence verifying his contention that he sustained frostbite injuries while a POW.  By regulation, the PH was authorized for frostbite injuries sustained during combat or while a POW during WWII.  The available evidence contains two physical examination medical reports that confirm the applicant sustained frostbite injuries to his feet while being held a POW during WWII.  As a result, it would be appropriate to award him the PH and to add it to his reconstructed record and WD AGO Form 53-55 at this time. 

2.  The evidence also confirms that based on being held as a POW during WWII from 16 December 1944 through 2 April 1945, the applicant is eligible for the POW Medal, which should also be awarded and added to his reconstructed record and WD AGO Form 53-55 at this time. 

3.  The evidence also includes The Adjutant General Letter Orders that awarded the applicant the BSM in 1952, based on his having earned the CIB during WWII. An NME Form 96 also that verifies the applicant's eligibility for the Marksman 

Marksmanship Qualification Badge with Pistol Bar; Expert Marksmanship Qualification Badge with Tank Weapons Bar; and 3 bronze service stars with his EAME Campaign Medal based on his participation in the Ardennes-Alsace, Rhineland, and Central Europe campaigns of WWII.  As a result, it would also be appropriate to add these awards to his WD AGO Form 53-55 at this time. 

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 a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting from item 33 of the applicant's WD AGO Form 53-55 the EAMET Ribbon;

	b.  deleting from item 34 of the applicant's WD AGO Form 53-55 the entry "None" and replacing it with the entry "1945, EAMETO, Frostbite, Feet";

	c.  awarding the applicant the Purple Heart for frostbite injuries incurred while a POW during WWII;

	d.  awarding the applicant the Prisoner of War Medal based on being held as a POW from 16 December 1944 through 2 April 1945;

	e.  adding to item 32 of the applicant's WD AGO Form 53-55 the Ardennes-Alsace and Rhineland campaigns;

   f.  adding to item 33 of the applicant's WD AGO Form 53-55 the Bronze Star Medal, Purple Heart, Prisoner of War Medal, Marksmanship Qualification Badge with Pistol Bar, Expert Marksmanship Qualification Badge with Tank Weapons Bar, and the European-African-Middle Eastern Campaign Medal with 3 bronze service stars; and 

	g.  issuing the applicant a correction to his WD AGO Form 53-55 to reflect these changes.



      _______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)                                         AR20090003165



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ABCMR Record of Proceedings (cont)                                         AR20090003165



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