IN THE CASE OF:	  

		BOARD DATE:	    8 December 2009

		DOCKET NUMBER:  AR20090011580 


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 award of the Purple Heart for wounds sustained while a prisoner of war (POW) in Germany.

2.  The applicant states that he was imprisoned in three different POW camps from 17 December 1944 through 11 April 1945.  As a prisoner he endured frozen feet from forced marches, malnutrition, and physical abuse.  On almost all occasions, he was able to dodge the blows and thrusts directed at him by the guards; however, on two occasions the guard succeeded in striking him between the shoulder blades and lower down with the butt of his rifle.  Such abuse was not uncommon.  He thought little of it until his back problems began years later.

3.  The applicant provides, in support of his application, a copy of a DD Form 215 (Correction to WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge)), dated 9 April 2003.

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 in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there are sufficient documents available for the Board to conduct a fair and impartial review of this case.

3.  A WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty, or Retirement), dated
27 November 1945, pertaining to the applicant, shows the following:

	a.  Statement and Medical History of Examinee - Items 10 and 11:  Applicant stated that he had no disabling injury, wound, or disease; however, he suffered from frozen feet in February 1944 while a POW in Germany and poison ivy in February 1943 while at Fort Benning, GA.

	b.  Record of Physical Examination - items 12 through 47:  The medical officer found that the applicant’s chest x-ray showed no significant abnormalities.  All other entries, to include the applicant’s feet and musculoskeletal system, indicate that his medical condition was normal.  No remarks were made concerning frostbite or back injuries.

4.  The applicant’s WD AGO Form 53-55, as corrected by the DD Form 215, shows the following:

	a.  that he enlisted on 18 February 1943 and he entered into active service on 
20 November 1943;

	b.  that he served in the European Theater of Operation (ETO) from
17 November 1944 to 2 May 1945;

	c.  that he departed the ETO on 2 May 1945 and he arrived in the United States on 15 May 1945;

	d.  that his awards include the POW Medal; and

	e.  that he was honorably discharged on 28 November 1945.


5.  In a Department of Veterans Affairs (VA) claim for service-connected disability, dated 7 November 1997, the applicant stated, in part, that prior to being overrun in December 1944, some 20 percent of his troop suffered from trench foot or frostbite.  These injuries were aggravated during marches and travel in the railroad boxcars.  The applicant further stated that his legs and feet swelled to where it was necessary to cut the laces on his boots.  He lost some skin and sensation in his toes.  The VA granted service-connect disability for frostbite injuries to both of his feet, rated at 20 percent.  In this same claim, service-connection for residuals of low back pain was denied on the basis that his service medical records did not suggest chronic low back pathology.

6.  Army Regulation 600-8-22 (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 required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

7.  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 or, in other words, incurred in actual combat.  Executive Order 11016, dated 25 April 1962, provided more latitude with respect to award of the Purple Heart to prisoners of war, 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 prisoners of war 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.

8.  Section 521a of the National Defense Authorization Act (NDAA) of 1996, authorized award of the Purple Heart to any former prisoner of war who was wounded before 25 April 1962 while held as a prisoner of war or while being taken captive, in the same manner as a former prisoner of war who was wounded on or after that date.  Section 521b specifically stated that award of the Purple Heart for prisoners of war under Section 521a shall be made in accordance with the standards in effect on the date of the enactment of this Act to persons wounded on or after 25 April 1962.

9.  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 while actually engaged in combat is authorized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart for wounds received while a POW in Germany during World War II.

2.  The WD AGO Form 38, dated 27 November 1945, is the only available evidence of record that discusses the applicant’s medical condition at the time.  This document indicates that the applicant stated that he suffered “frozen feet.”  However, the medical examining official found no residual abnormalities from such an injury.  Furthermore, the medical examination made no mention of any other injuries or abnormalities to the applicant’s back.

3.  The applicant states in his VA Claim that he suffered from frostbite prior to becoming a POW and that his imprisonment had aggravated his injury.  Unfortunately, there is no available documentation from the time of the event to corroborate the applicant’s contentions.

4.  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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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 for correction of the records of the individual concerned.



      ___________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)                                         AR20090011580



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ABCMR Record of Proceedings (cont)                                         AR20090011580



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