IN THE CASE OF:	  

		BOARD DATE:	  23 February 2010

		DOCKET NUMBER:  AR20090013425


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 reconsideration of his previous request for award of the Purple Heart.

2.  The applicant states he sustained a traumatic brain injury (TBI) during World War II (WWII) which entitles him to the Purple Heart.

3.  The applicant provides:

	a.  a Department of Veterans Affairs (VA) letter dated 9 November 2004 stating his "head pain, hearing loss, numbness, and nerve damage" may have been related to his WWII combat service;

	b.  a letter of support from a former comrade-in-arms who went through training with him and served in a different company within the same battalion during WWII;

	c.  a photocopied page containing a separation physical examination (WD AGO Form 38) which found him "normal."  A Form No. 52b – Medical Department USA, showing that he went on sick call in Aalen, Germany at 0930 hours, 23 July 1945, complaining of a headache for which he was prescribed a half gram of codeine; and at 0945 hours, he was given aspirin, salt water gargle, and an indecipherable remedy.  A Form No. 55L-15 – Medical Department USA, showing on 10 December 1943 that he had pneumococcus bacteria, staphylococcus aureus bacteria, and streptococcus bacteria; and Morning Report entries showing the applicant was placed on limited duty (LD) on 25 and 26 July 1945.

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 AR20090000431 on 2 June 2009.

2.  The documents submitted by the applicant in paragraph 3, above, with the exception of the document listed at paragraph 3b, were not previously reviewed by the ABCMR and are considered new evidence warranting consideration by the Board.  Also, the applicant's contention he suffered a TBI is a new argument warranting consideration by the Board.

3.  The applicant entered active duty on 4 October 1943.  He served 2 years, 4 months, and 26 days of active service and was honorably discharged on 8 February 1946.  He was a truck driver in the 119th Armored Engineer Battalion.

4.  A VA doctor wrote in 2004 the applicant's "…head pain, hearing loss, numbness and nerve damage are just as likely as not due to injuries received in combat…."  The applicant was 82 at the time and had been discharged more than 58 years.

5.  The Medical Department Form No. 55L-15, dated 10 December 1943, shows the applicant was beset with bacterial infections.  This occurred almost 1 year before the applicant arrived in the European Theater of Operations (ETO).

6.  The Medical Department Form No. 52b and the Morning Report entries show that, on 23 July 1945, some 3 months after the war ended in Europe, the applicant went on sick call complaining of a headache.  He was prescribed a half gram of codeine, two aspirin and salt water gargle, and was returned to duty.  Later, on 25 and 26 July 1945, he was given limited duty.

7.  The Purple Heart:

	a.  Was established by General George Washington at Newburgh, New York, on 7 August 1782, during the Revolutionary War.  It was reestablished by the President of the United States per War Department General Orders 3, 1932 and is currently awarded pursuant to Executive Order 11016, 25 April 1962; Executive Order 12464, 23 February 1984; Public Law 98-525, 19 October 1984 amended by Public Law 100-48, 1 June 1987; Public Law 103-160, 30 November 1993; Public Law 104-106, 10 February 1996; and Public Law 105-85, 18 November 1997.

	b.  The Purple Heart is awarded in the name of the President of the United States and, per 10 USC 1131, effective 19 May 1998, 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:

		(1) In any action against an enemy of the United States. 

		(2) In any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged. 

		(3) While serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party. 

		(4) As the result of an act of any such enemy of opposing Armed Forces. 

		(5) As the result of an act of any hostile foreign force. 

		(6) After 28 March 1973, as the result of an international terrorist attack against the United States or a foreign nation friendly to the United States, recognized as such an attack by the Secretary of Army, or jointly by the Secretaries of the separate armed services concerned if persons from more than one service are wounded in the attack. 

		(7) After 28 March 1973, as the result of military operations while serving outside the territory of the United States as part of a peacekeeping force. 

		(8) Members killed or wounded in action by friendly fire.  In accordance with 10 USC 1129 for award of the Purple Heart, the Secretary of the Army will treat a member of the Armed Forces described in ( a ), below, in the same manner as a member who is killed or wounded in action as the result of an act of an enemy of the United States: 

			  (a) A member described in this subsection is a member who is killed or wounded in action by weapon fire while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States, unless (in the case of a wound) the wound is the result of willful misconduct of the member. 

			(b) This section applies to members of the Armed Forces who are killed or wounded on or after 7 December 1941.  In the case of a member killed or wounded, as described in paragraph 2-8b above, on or after 7 December 1941 and before 30 November 1993, the Secretary of the Army will award the Purple Heart under provisions of paragraph 2-8a above in each case which is known to the Secretary before such date or for which an application is made to the Secretary in such manner as the Secretary requires. 

	c.  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.

	d.  A Purple Heart is authorized for the first wound suffered under conditions indicated above, but for each subsequent award an Oak Leaf Cluster will be awarded to be worn on the medal or ribbon.  Not more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent.

	e.  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. 

	f.  When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award. 

	g.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows: 

		(1) Injury caused by enemy bullet, shrapnel, or other projectile created by enemy action. 

		(2) Injury caused by enemy placed mine or trap. 

		(3) Injury caused by enemy released chemical, biological, or nuclear agent. 

		(4) Injury caused by vehicle or aircraft accident resulting from enemy fire. 
		(5) Concussion injuries caused as a result of enemy generated explosions. 

	h.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: 

		(1) Frostbite or trench foot injuries. 

		(2) Heat stroke. 

		(3) Food poisoning not caused by enemy agents. 

		(4) Chemical, biological, or nuclear agents not released by the enemy. 

		(5) Battle fatigue. 

		(6) Disease not directly caused by enemy agents. 

		(7) Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action. 

		(8) Self-inflicted wounds, except when in the heat of battle and not involving gross negligence. 

		(9) Post traumatic stress disorders. 

		(10) Jump injuries not caused by enemy action. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's new evidence has been reviewed and his new argument considered.

2.  The applicant's medical evidence from WWII shows he had bacterial infections while training in the United States prior to deploying to the ETO.  The evidence also shows that he went on sick call for a headache some 3 months after the war ended in Europe.  The applicant's headache was of unknown etiology and the records make no connection between the applicant's headache and any combat-related event.

3.  The applicant's 2004 medical evidence from a VA doctor gives faint support to the applicant's claim, saying his headaches today are just as likely as not to be due to combat-related injuries some 60 years ago.
4.  Regrettably the applicant still has not established his entitlement to award of the Purple Heart.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090000431, dated 2 June 2009.



      _______ _   __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)                                         AR20090013425



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ABCMR Record of Proceedings (cont)                                         AR20090013425



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