IN THE CASE OF:	  

		BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20100007572 


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 earlier request for award of the Purple Heart.

2.  The applicant states that the additional evidence with this application should qualify him for the Purple Heart.

3.  The applicant provides the following documents:

* a previously-submitted WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge), dated 31 May 1946
* a previously-submitted Honorable Discharge Certificate, dated 31 May 1946
* a previously-submitted letter from the National Personnel Records Center, dated 2 March 2000
* a previously-submitted Department of Veterans Affairs (VA) Form 21-4138 (Statement of Claim), dated 7 September 2007
* a copy of a Compensation and Pension Examination Report, dated 14 July 2009
* a copy of a letter from a medical doctor, dated 4 May 2009
* a copy of his VA Rating Decision, dated 29 October 2009

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 AR20090001073 on 28 April 2009.

2.  The applicant submitted copies of a Compensation and Pension Examination Report, a letter from a medical doctor, and his VA rating decision which were not previously reviewed by the ABCMR.  Therefore, they are considered new evidence and as such warrant consideration by the Board.

3.  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.

4.  The applicant's WD AGO Form 53-55 shows he was inducted into the Army of the United States on 28 January 1944 and entered active service in Butler, PA, on 19 February 1944.  This form also shows that at the time of separation, he held military occupational specialty 566 (Duty Noncommissioned Officer) and was assigned to the 254th Infantry, 63rd Division.

5.  His WD AGO Form 53-55 shows he departed the continental United States on 25 November 1944 and arrived in the European theater of operations on 8 December 1944.  He departed the European theater on 19 May 1946 and arrived back in the United States on 27 May 1946.

6.  He completed 10 months and 1 day of continental service and 1 year, 6 months, and 3 days of foreign service.  He was honorably separated on 31 May 1946.

7.  Item 31 (Military Qualifications and Date) of his WD AGO Form 53-55 shows he was awarded the Combat Infantryman Badge.  

8.  Item 32 (Battles and Campaigns) of his WD AGO Form 53-55 shows he participated in the Central Europe and Rhineland campaigns during World War II.

9.  Item 33 (Decorations and Citations) of his WD AGO Form 53-55 shows the Army of Occupation Medal, Distinguished Unit Badge with Oak Leaf Cluster, European-African-Middle Eastern Campaign Medal, Army Good Conduct Medal, and World War II Victory Medal.


10.  Item 34 (Wounds Received in Action) of his WD AGO Form 53-55 contains the entry "None."

11.  The applicant previously submitted various medical documents showing treatment for an abscess on his left leg; however, none of his documents showed a cold weather injury.

12.  The applicant submitted the documents:

	a.  a Compensation and Pension Examination Report, dated 14 July 2009, wherein he stated that he was in the front lines in France and noted he had several episodes of injury and trauma to his legs and was exposed to extreme cold with summer clothing.  He did not have changes of socks or shoes and had a trench foot and frostbite to his feet.  He suffered from onychomycosis/
tinea pedis which could be related to his long exposure to wet…without dry or clean boots or socks and exposure to the cold.  The report also shows he noted to have a history of shrapnel in his left dorsal foot, which was white phosphorous. 
On the left dorsal foot, he shows two areas highlighted in orange [by him]; the areas slightly depressed where the shrapnel apparently was left in his foot;

	b.  a letter from a medical doctor, dated 4 May 2009, wherein the doctor states the applicant has both stasis dermatitis, Scamberg's pigmented purpora, and varicose veins.  His condition was most likely related to his exposure, extremes of temperatures, injury, and heavy lifting during his military service; and

	c.  a copy of his VA Rating Decision, dated 29 October 2009, wherein he was awarded service-connected disability compensation for Scamberg's disease, onychomycosis, tinea pedis, right leg varicose veins (claimed as frozen feet), and left leg varicose veins.

13.  The Purple Heart 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 Number 3 in 1932.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action.

14.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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, and the medical treatment must have been made a matter of official record.  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 applicable to the Purple Heart.  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.  Although frostbite or trench foot injuries do not qualify for the Purple Heart under current standards, prior to 23 August 1951, the regulation permitted award of the Purple Heart to personnel who were severely frostbitten while actually engaging in combat.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the Purple Heart.

2.  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.  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 the award.

3.  The evidence of record shows the applicant sustained an acute abscess on his left leg during World War II.  However, there is no indication that he suffered a cold-weather injury or that such injury occurred while engaging in combat or that he was treated for any cold-weather injuries.  His left leg abscess was later confirmed by VA officials who awarded service-connected disability based on this injury.

4.  The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action or while engaged in combat, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.  In this case, the applicant suffered a non-battle injury and was later awarded a VA service-connected disability compensation, neither of which meets the criteria for award of the Purple Heart.

5.  Notwithstanding the applicant's sincerity, in the absence of additional documentation that conclusively shows he was wounded or injured as a result of hostile action or that he suffered a severe cold weather injury while engaged in combat and treated for those wounds/injuries, there is insufficient evidence upon which to base award of the Purple Heart in this case.

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 AR20090001073, dated 28 April 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)                                         AR20100007572



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ABCMR Record of Proceedings (cont)                                         AR20100007572



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