IN THE CASE OF:	  

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100009290 


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.  

2.  The applicant states the following:

* a bomb exploded near him while he was in the service 
* he suffered severe injuries and should be entitled to a Purple Heart
* he still has shrapnel in his body
* he also has severe hearing and vision loss
* he is drawing Department of Veterans Affairs (VA) disability for these injuries

3.  The applicant provides his WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge), WD AGO Form 100 (Separation Qualification Record), and numerous medical documents in support of his application.  

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 applicant’s WD AGO Form 53-55 shows he enlisted in the Regular Army on 5 July 1940.  He arrived in the European Theater of Operations on 1 March 1944 and departed on an unknown date.  

4.  A medical card, dated 27 January 1945, shows the applicant was diagnosed as having:

* trench foot, bilateral (acute, mild) and became non-effective on 15 December 1944 in Belgium
* deafness due to heavy firing (bilateral), concussions in 1942 on maneuvers
* line of duty – yes for both medical conditions

5.  Medical documents, dated 20 February 1945 and 21 April 1945, show the applicant was diagnosed with trench foot, bilateral (moderately severe).  

6.  His Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty or Retirement shows he sustained trench foot in 1945 in Germany and his ear was damaged in 1944 in France due to a concussion.  

7.  The applicant was honorably discharged on 2 October 1945.  His WD AGO Form 53-55 does not show the Purple Heart as an authorized award.  Item 34 (Wounds Received in Action) shows the entry “none.”

8.  Army Regulation 600-8-22 (Military Awards) provides 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.  This 


regulation states that when contemplating award of the Purple Heart, the key issue that commanders must take into consideration is the degree in 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 the sole justification for award.  

9.  Army Regulation 600-8-22, paragraph 2-8h, gives 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
* jump injuries not caused by enemy action

10.  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” was 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” pertained to weather and the award of this decoration to personnel who were severely frostbitten while actually engaged in combat was authorized.

11.  Title 38, U. S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant states a bomb exploded hear him while he was in the service and he suffered severe injuries.  He also states he still has shrapnel in his body and has severe hearing and vision loss.  


2.  The applicant’s medical document, dated 27 January 1945, shows he had trench foot and sustained deafness due to heavy firing and concussions.  His separation physical shows his ear was damaged due to a concussion.  However, these medical documents do not verify that the applicant sustained wounds as a result of hostile action.  
3.  In addition, based on the Military Awards Regulation, trench foot is not a basis for award of the Purple Heart.

4.  Although the applicant states he is drawing VA disability for these injuries, his rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  

5.  In the absence of any other corroborating evidence of record which shows the applicant was wounded or injured as a result of hostile action, 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 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)                                         AR20100009290



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ABCMR Record of Proceedings (cont)                                         AR20100009290



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