IN THE CASE OF:	

		BOARD DATE:	21 July 2009 

		DOCKET NUMBER:  AR20090003995 


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 and retroactive promotion to sergeant (SGT)/grade 4. 

2.  The applicant states that he attended radio school and was the private driver for his commanding officer.  He states that all radio operators in his company were promoted to SGT; however, he was not promoted because the company commander told a senior noncommissioned officer that he should not be promoted because he (the applicant) went over his (the company commander) head about going to radio school.  He further states that he sustained cold weather injuries in combat (frozen feet).

3.  The applicant provides copies of a self-authored testimony of his experiences while serving in World War II; a Department of Veterans Affairs (VA) Rating Decision, dated 16 September 2008; three letters of support; a National Archives (NA_ Form 13038 (Certification of Military Service); and his WD AGO Form      53-55 (Enlisted Record and Report of Separation - Honorable Discharge) with a separation date of 12 March 1946 in support of his application. 

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 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, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case, including the applicant's WD AGO 53-55 and documents provided by the applicant.  However, there are no medical records available for the Board's review.

3.  The available evidence shows that the applicant was inducted into the Army of the United States on 23 February 1943 and entered active service on
"30 February 1943" (sic).  He completed basic combat and advanced individual training and was subsequently awarded military occupational specialty (MOS) 776 (Radio Operator).

4.  The applicant served in the European-African-Middle Eastern Theater of Operations (EAMETO) from 18 November 1944 to 26 February 1946.  He served in three campaigns:  the Rhineland Campaign (15 September 1944 to 21 March 1945); the Ardennes-Alsace Campaign (16 December 1944 to 25 January 1945); and the Central Europe Campaign (22 March 1945 to 11 May 1945). 

5.  On 12 March 1946, the applicant was released from active duty by reason of demobilization.  Item 3 (Grade) of the applicant's WD AGO Form 53-55 shows his rank upon separation was private first class (PFC).  Item 33 (Decorations and Citations) does not show he was awarded the Purple Heart.  Item 34 (Wounds Received in Action) contains the entry "NONE."

6.  On 16 September 2008, the VA provided the applicant with its rating decision, finding that the applicant was rated 10 percent disabled due to residuals of a cold injury to his right extremity and 10 percent disabled due to a cold injury to his left lower extremity.  In this decision it was explained that a 10 present evaluation is assigned if there is pain, numbness, cold sensitivity, or arthralgia.  The VA denied the applicant service-connection for post traumatic stress disorder because the medical evidence of record fails to show that this disability has been clinically diagnosed.  
7.  The applicant submitted a personal anthology of his experiences as a Soldier serving in the EAMETO.  He states, in effect, that his right foot was frozen during the Ardennes Campaign in France and that the medical aid station did not have doctors available to treat his frostbitten foot.  He sought assistance from a French family where he was nursed by the woman of the house.  He states he did return to his unit after receiving care for three weeks from the French family.  

8.  Three military Veterans from his unit wrote letters of support.  The first Veteran states, in effect, that the applicant did have his right foot frozen due to the extreme cold in the Ardennes region of France.  He said that a Soldier assisted the applicant to a medical aid station.  The unit moved and within a short period of time the applicant returned to the unit at its new location stating he was avoiding being shipped to the rear area hospital because he did not want to end up in the replacement unit.  The second Veteran states, in effect, that he was with the applicant in France and it was bitter cold.  The troops could not operate any vehicles or equipment in order to warm themselves.  He learned that the applicant was at the medical aid station seeking treatment for his frozen foot.  When the applicant returned to the unit, the Veteran states he still looked in pretty bad shape and he was in severe pain.  The third Veteran's statement corroborates with the other statements stating, in effect, the applicant's foot was severely injured by the extreme cold weather because there was no heat available to warm them for a three day period in the winter in France.    

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for wounds 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 required treatment by medical personnel, and the medical treatment must have been made a matter of official record

10.  Army Regulation 600-45 (Decorations), then in effect, which governed the award of Army decorations until 23 August 1951, stated the Purple Heart was awarded to citizens of the United States serving with the Army, who are 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.  This regulation 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 while actually engaged in combat (emphasis added) is authorized.



11.  From 1 September 1942 through 31 July 1948, the enlisted grade structure 
consisted of seven grades:  

    Grade 7 – Private	
    Grade 6 – Private First Class
    Grade 5 – Corporal
    Grade 4 – Sergeant
    Grade 3 – Staff Sergeant
    Grade 2 – Technical Sergeant;
    Grade 1 – Master Sergeant/First Sergeant.

12.  Army Regulation 615-5 (Appointment and Reduction of NCOs and PFCs), in effect at the time, governed the appointment and reduction of noncommissioned officers and privates first class.  In pertinent part, it stated that the commanding officer of a unit to which an allotment of grades was authorized by the War Department would determine and sub-allot a definite proportion to his subordinate commanders authorized to make appointments.  It also stated that noncommissioned officers appointed during an emergency under special authorization of the War Department would be temporary appointments.  In order to provide an opportunity to observe the performance of candidates for higher grades, unit commanders were authorized to exceed their authorized allotments in any grade by the number of vacancies that existed in a higher grade pending the promotion of the best-qualified candidate(s).  Depending on the type of unit, the company, battalion, or regimental commander was the appointment authority.

13.  Army Regulation 624-200 (Promotions, Demotions, and Reductions – Appointment and Reduction of Enlisted Personnel) provided the authority for appointment of acting noncommissioned officers (NCO).  It provided, in pertinent part, that company, troop, battery, and separate detachment commanders may appoint acting corporals and acting sergeants to fill vacancies in their units.  Acting NCOs are not entitled to the pay and allowances of such higher grades and service as an acting NCO will not be credited as time in a higher grade for appointment or date of rank purposes.  All appointments and the termination of such a status will be announced in orders issued by the appointing authority.  Acting NCO status will be terminated at the discretion of the commander who made the appointment, upon reassignment to another unit, or upon assignment of a regular appointed NCO to the position.  Such appointments do not confer any entitlement to promotion or advancement, at a later date, to the grade in which the individual is acting.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the 
Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is entitled to the award of the Purple Heart for cold weather injuries that he sustained in Europe.

2.  The applicant's WD AGO 53-55 shows that he had no wounds recorded on his separation document nor has the applicant provided any medical evidence from his enlistment period that shows he sustained cold weather injuries to his feet while engaged in combat.

3.  The requirement for award of the Purple Heart is that a Soldier must have received medical treatment by medical personnel of the U.S. Armed Forces and that the injury or wound must be documented in medical records. 

4.  There is insufficient evidence to show that the applicant sustained a wound as the result of hostile action.  There is no evidence to show that U.S. Armed Forces medical personnel treated the applicant and that this treatment was made a matter of official record.  In fact, the applicant stated that a French woman provided nursing care to him for his cold weather injuries in her home for three weeks.  He stated that if he sought military medical care he could be relocated to the replacement detachment and potentially not reassigned to his current unit.  Therefore, there is no basis for awarding the applicant the Purple Heart.

5.  The applicant also contends that he should have been promoted to sergeant/pay grade E-5 like all the other radio operators in his company.  He further claims that his promotion was withheld by his company commander.

6.  There is no evidence among the available documents and the applicant provides no evidence that shows he held a grade above that of private first class or that his promotion was withheld by anyone within his chain of command.   In any case, recommendations for promotion were made at the discretion of the commanding officer.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement

8.  In view of the foregoing, there is insufficient basis to award the applicant the Purple Heart or to promote him to SGT.

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)                                         AR20090003995



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ABCMR Record of Proceedings (cont)                                         AR20090003995



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