IN THE CASE OF:	

		BOARD DATE:	 15 December 2009 

		DOCKET NUMBER:  AR20090012213 


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 and its addition to his separation document.

2.  The applicant states that the policy for granting a Purple Heart to veterans suffering from frozen feet injuries has recently been modified.  His service was in the Battle of the Bulge and his injury was incurred during 2 weeks in early March 1944 in combat during a late winter storm and blizzard with exposure to sub-freezing temperatures.  He also states that he served with Company B, 424th Infantry, 106th Division.  His serious health problems, combined with a 2000 to 2007 successful claim for service-connected disability for rheumatic fever in World War II, are involved.  He continues to suffer from feet conditions.

3.  In support of his application, the applicant provides a copy of an article published in the Bulge Bugle, dated August 2003, titled, "Reunions," subtitled, "Special Notice."

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 were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The available military records show the applicant was inducted into the Army of the United States in pay grade E-1 on 31 August 1943 and entered active duty on 21 September 1943.  He completed training in military occupational specialty 740 as an intermediate speed radio operator.  He served overseas in the European theater of operations (ETO) from 29 October 1944 to 18 April 1946 with Company B, 422nd Infantry Regiment, 106th Infantry Division.

4.  The applicant was honorably discharged from active duty in the rank of technician fifth grade on 20 April 1946 for the convenience of the government - demobilization.

5.  The entries on the applicant's WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge) do not show award of the Purple Heart.  Item 31 (Military Qualification and Date) lists the Marksman Marksmanship Qualification Badge with Rifle Bar (M-1).  Item 33 (Decorations and Citations) lists the Army Good Conduct Medal, the American Theater Service Medal, and the European-African-Middle Eastern Theater Ribbon.  Item 55 (Remarks) lists two overseas service bars and the Honorable Service Lapel Button.

6.  Item 34 (Wounds Received in Action) of the WD AGO Form 53-55 shows the entry "none" to indicate the applicant was not wounded while he served in the ETO.

7.  There are no orders in the applicant's available records that show he was awarded the Purple Heart.  There is also no evidence in the available records to show that he was wounded or treated for frostbite or frozen feet as a result of hostile action.

8.  The applicant's records contain a hospitalization file listing (page 023, microfiche 210), created by the Office of the Surgeon General and hospital admission cards for the year 1944 that shows while serving at Fort Benning, Georgia, the applicant was diagnosed with neuralgia [a painful disorder of the nerves] and in September 1944 was diagnosed with acute alcoholism.  There is no evidence he was diagnosed and treated for frostbite or frozen feet while serving in the ETO.

9.  The applicant submitted a copy of an article published in the Bulge Bugle, dated August 2003, titled, "Reunions," subtitled, "Special Notice."  This article stated that the periodical received many inquiries about whether or not the Purple Heart Medal was issued for frozen feet.  It advised that the determination is made on an individual basis by the ABCMR and further advised how to make application to the Board.

10.  Army Decorations Regulation, change number 4, in effect at the time of the applicant's service, provided in pertinent part that the Purple Heart was awarded to members of the Armed Forces of the United States and to civilians who were citizens of the United States serving with the Army, who were 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.  [For the purpose of awarding the Purple Heart, a wound is defined as an injury to any part of the body from an outside force, element, or agent sustained as a result of a hostile act of the enemy or while in action in the face of the enemy.]  The regulation continued, "In connection with the definition of 'wound' above, the word 'element' refers to weather and permits award to personnel severely frostbitten while actually engaged in combat.  Trench foot will not be considered as meriting award."

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not show the applicant sustained frostbite to the feet or any other medically-related issues while engaged in combat against the enemy.  The applicant provided no evidence to show he was hospitalized to receive medical treatment for frostbite or frozen feet during World War II.  Regulatory guidance in effect at the time provided for award of the Purple Heart to personnel severely frostbitten while actually engaged in combat.  The evidence does not support the applicant's request for his entitlement for award of the Purple Heart.

2.  Based on the evidence in this case, he is not entitled to award of the Purple Heart and its addition to his records and separation document.


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)                                         AR20090012213



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ABCMR Record of Proceedings (cont)                                         AR20090012213



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