IN THE CASE OF:	  

		BOARD DATE:	         6 August 2009

		DOCKET NUMBER:  AR20090012640 


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, through a 21 July 2009 letter from his Representative in Congress, requests reconsideration of two previous denials by the Army Board for Correction of Military Records (ABCMR) of his request for award of the Purple Heart.

2.  The applicant states, in effect:

	a.  on or about 14 December 1944, he was using his bayonet as a probe in order to clear a path through a German-emplaced minefield in order to reach a number of wounded Soldiers caught in the minefield.  The minefield was comprised of anti-personnel mines of the type known as schü-mine 42, or "shoebox" mines;

	b.  as he was working to clear mines, a lieutenant near to him triggered a mine.  The explosion splattered the lieutenant’s blood all over the applicant.  In his blood-splattered condition, he never noticed his own wound and never sought medical attention for it; and

	c.  fifty-nine years later in 2003, he underwent a magnetic resonance imaging (MRI) examination.  Because of an anomaly, the MRI was halted and the applicant was given a computed tomography (commonly known as CT or CAT) scan.  A retained, metallic foreign body was identified in the posterior right frontal convexity.  Later, the Department of Veterans Affairs (DVA) granted him service connection for a shrapnel wound.

3.  The applicant’s Representative in Congress, after reviewing the 11 January 2007 Record of Proceedings of the applicant’s reconsideration denial in ABCMR Docket Number AR20060005688, focused on the nature of the minefield wounding event and the criteria for award of the Purple Heart.  In effect, he argued the following.

	a.  The logic in paragraph 3 (Discussion and Conclusions) is flawed.  That paragraph, quoted in pertinent part, states:

[…he believed his wound probably occurred when a lieutenant close to him set off a mine, and the applicant was covered with the lieutenant’s blood.  If the applicant was wounded at that time, it meant he was wounded as a result of an accident and not as a result of hostile action.]  When contemplating an award of the Purple Heart, the key issue commanders must take into consideration is the degree to which the enemy caused the injury.  While the mine might have been placed by the enemy, it did not harm the applicant until the lieutenant set it off (emphasis added).

It is improper to suggest that the lieutenant’s denotation of a German mine was an accident and, therefore, the applicant is not entitled to a Purple Heart.  The criteria for award of the Purple Heart (in Public Law 98-525, 19 October 1984, et al) stipulates that "enemy-related injuries which clearly justify award of the Purple Heart [include] injury caused by enemy placed mine or trap."

	b.  Additionally, the applicant was awarded a Bronze Star Medal, in part, for his heroic action in clearing the minefield.  The citation "indicated that he distinguished himself by heroic action while engaged in military operations involving conflict with an opposing foreign force."  Since active combat was ongoing in the vicinity during the period in question, it is believable that paperwork documenting the applicant’s wounding was incomplete.

4.  The applicant provides a letter, dated 21 July 2009, from his Member of Congress in support of his request.  Also provided was a letter, dated 24 April 2009, from Colonel D___, retired.  Colonel D___'s relationship to the applicant cannot be determined.

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 AR20050004632 on 13 September 2005 and his subsequent request for reconsideration in Docket Number AR20060007733 on 11 January 2007.  The applicant was previously informed that, upon reconsideration, the decision in his case was final; however, as an exception to policy, the ABCMR will again reconsider the applicant's case based upon the new argument submitted by his Representative in Congress.

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 applicant’s WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) shows he was inducted into the Army of the United States on 4 March 1943 and entered active duty on 11 March 1943.  At the time of his separation the applicant held military occupational specialty 729 (Pioneer) and was assigned to the Anti-Tank Company, 310th Infantry Regiment, 79th Infantry Division.

4.  The applicant’s WD AGO Form 53-55 shows he departed the United States on 14 October 1944 and arrived in the European-African-Middle Eastern (EAME) theater of operations on 25 October 1944.  He departed the EAME theater on 21 October 1945 and arrived back in the United States on 7 November 1945.  He was honorably separated on 12 November 1945.

5.  Item 33 (Decorations and Citations) of the applicant’s WD AGO Form 53-55 shows he was awarded the American Service Medal, the Bronze Star Medal, the European-African-Middle Eastern Campaign Medal, and the Army Good Conduct Medal.  Item 33 does not show award of the Purple Heart.

6.  Item 34 (Wounds Received in Action) of the applicant’s WD AGO Form 53-55 contains the entry "None."

7.  On 8 March 2006, the applicant was issued a DD Form 215 (Correction to DD Form 214 [or WD AGO Form 53-55]) to show award of the Bronze Star Medal (1st Oak Leaf Cluster) and "V" Device, the WWII Victory Medal, the Army of Occupation Medal with Germany Clasp, and three bronze service stars to be affixed to his already-awarded European-African-Middle Eastern Campaign Medal.

8.  The applicant was awarded the Bronze Star Medal for heroic achievement in connection with military operations against the enemy on 14 and 15 December 1944.  General Orders Number 7, Headquarters, 78th Infantry Division, dated 8 January 1945, cited the following reason:

[Applicant], under observation of the enemy and subjected to heavy small arms fire, probed and cleared anti-personnel mines from a path to establish contact with an adjacent unit.  He was later informed of nine wounded men lying exposed to enemy fire in a minefield.  [Applicant] volunteered to attempt a rescue.  In four trips, he found and removed fifty mines, thereby clearing a lane to the men.  On still another occasion, [applicant] removed two booby traps from a house so as to permit the safe removal of six wounded men trapped there.  His outstanding devotion to duty and utter disregard for his personal safety are in accordance with the highest military traditions.

9.  In a letter, dated 21 July 2009, the applicant’s Member of Congress raises the following points.

	a.  "Purple Heart criteria (Public Law 98-525…), as verified by the Military Order of the Purple Heart, merely stipulates that 'enemy-related injuries which clearly justify award of the Purple Heart include an injury caused by enemy placed mine or trap.'  There is no specification beyond this point other than the injury cannot be the result of his own negligence, which is clearly not the case in this incident."

	b.  The applicant was awarded the Bronze Star Medal 4 years after his heroic event which indicated that he distinguished himself by heroic action in military operations involving conflict with an opposing foreign force as there is no indication things were peaceful and that the incident was related to U.S. forces accidentally traversing a known or previously identified minefield.  Since according to accounts and historical records that active combat was occurring in the vicinity and the mission is the priority, it is believable that paperwork was incomplete.  Coupled with the loss of his military records by the 1973 fire, it is prudent to consider known details, surviving records, and personal statements.

	c.  The applicant did not receive this shrapnel wound by his own negligence; rather, as a direct result of the pursuit of and subsequent engagement with the enemy and their devices.

	d.  The DVA has acknowledged the wound and continues to provide treatment to the applicant.

	e.  Many WWII veterans received the Purple Heart due to injuries sustained in minefields, including members of the "Purple Heart Battalion" and Silvestre S. Herrera when he stepped on two mines in pursuit of the enemy.

10.  In his 24 April 2009 letter, Colonel D___, retired, stated that the applicant took shrapnel in his head from the explosion but did not realize it at the time.  Colonel D___ stated, "The aid station was full of seriously injured soldiers, so when he learned that the blood bath was not his own, he pressed on.  He was unaware of the shrapnel in his head."  

11.  Army Regulation 600-8-22 (Military Awards) sets forth Department of the Army criteria, policy and instructions concerning individual military awards, the Army Good Conduct Medal, service medals and service ribbons, combat and special skill badges and tabs, unit decorations, and trophies and similar devices awarded in recognition of accomplishments.  It provides, in pertinent part, for award of the Purple Heart as follows.

	a.  The Purple Heart is awarded in the name of the President of the United States and is limited to members of the Armed Forces of the United States who, while serving under component authority in any capacity with one of the U.S. Armed Services after 5 April 1917, have been wounded or killed, or who have died or may hereafter die after being wounded.

	b.  While clearly an individual decoration, the Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather, he or she is entitled to it upon meeting specific criteria.

	c.  A wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions listed above.  A physical lesion is not required; however, the wound for which the award is made must have required treatment by medical personnel and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.

	d.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:  injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and/or concussion injuries caused as a result of enemy generated explosions.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows:  frostbite or trench foot injuries; heat stroke; food poisoning not caused by enemy agents; chemical, biological, or nuclear agents not released by the enemy; battle fatigue; disease not directly caused by enemy agents; accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; self-inflicted wounds, except when in the heat of battle and not involving gross negligence; post-traumatic stress disorders; and/or jump injuries not caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the Purple Heart for a shrapnel wound he received as a result of a German "shoebox" mine detonation in December 1944.  As he related the incident in a February 2005 letter to the Army Human Resources Command, "I believe now, in retrospect, that it [his wounding] occurred on the first day [of combat], probably 14 December 1944 while I was in the process of bayoneting a path to nine wounded GI’s caught in a minefield that was strewn with schü-mines.  A lieutenant close to me set off a mine and I was covered with his blood….I do not actually remember the exact moment I received the wound, so how could I seek medical attention with so many GIs needing fast medical help and I was their only immediate help."

2.  The German schü-mine 42 consisted of a simple wooden box with a hinged lid containing a 200 gram block of cast trinitrotoluene (TNT).  A slot in the lid pressed down on the striker retaining pin, sufficient pressure on the lid causing the pin to move, releasing the striker which triggered the detonator.  The mine was cheap to produce, and its wooden body made it more difficult to detect with early metal detectors.  The mine was not a fragmentation device; it was a blast device designed to blow the foot off the person stepping on it.  In more severe cases, traumatic amputation of the limb up to the knee was possible.  Because the mine did contain some small metallic parts, it would be possible for such parts to turn into a projectile upon detonation of the TNT.  Thus, the applicant could have received a shrapnel wound from a "shoebox" mine.

3.  The incident described by the applicant fits the regulatory examples of enemy-related injuries which clearly justify award of the Purple Heart, particularly the example of injury received in action and caused by an enemy placed mine or trap.  However, the wound for which the award is made must have required treatment by medical personnel and records of medical treatment must have been made a matter of official record (emphasis added).

4.  The DVA’s acknowledgement, 59 years after the fact, of a wound and the continuance to provide treatment to the applicant are also noted; however, the granting of service-connected disability to a Soldier is insufficient to justify an award of the Purple Heart.

5.  Notwithstanding the additional information provided by the applicant’s Member of Congress and Colonel D___, there is no contemporaneous evidence that shows he was wounded or injured as a result of hostile action.  In addition, there is no evidence to show the applicant was treated for such wounds.  Further, he acknowledged that he did not seek treatment (…so how could I seek medical attention with so many GIs needing fast medical help….")   Regrettably, absent evidence which conclusively shows that the applicant sustained wounds or injuries as a result of hostile action, and more particularly that he was treated by medical personnel for those wounds or injuries and that this treatment was made a matter of official record, there is an insufficient basis for awarding the Purple Heart to the applicant.

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 to amend the decision of the ABCMR set forth in AR20050004632, dated 13 September 2005, or AR20060007733, dated 11 January 2007.

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)                                         AR20090012640



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090012640



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1