IN THE CASE OF:	  

		BOARD DATE:	  19 May 2011

		DOCKET NUMBER:  AR20100027881 


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 to be awarded the Purple Heart for injuries to his feet during World War II (WWII).

2.  The applicant states he was awarded the Purple Heart at the 34th Evacuation Hospital in France and he refused it because he did not want his mother notified that he had been awarded the Purple Heart or was injured because of the emotional impact it would have on her.  He states his injury may have been recorded as a non-combat injury, but it was definitely due to his activity as a combat infantryman.  He continues to state he was fitted with inferior British boots that were always wet from the time he waded in at Normandy to just before he entered the hospital in France.  The left boot developed a hole in the toe and his toe developed an ulcer.

3.  The applicant provides:

* a one-page statement explaining his application
* a letter from his spouse
* copies of two letters from the applicant to his Congressional representative
* a copy of his Department of Veterans Affairs (VA) Rating Decision, dated 23 February 2006, showing he received disability ratings for cold injuries to his feet



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.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center (NPRC) in 1973.  It is believed the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.

3.  The applicant was inducted into the Army of the United States on 8 July 1943 and entered active duty in New York on 18 August 1943.  He completed his training as a heavy mortar crewman and departed for the European theater of operations (ETO) on 30 May 1944 and arrived on 6 June 1944 (D Day).  He was awarded the Combat Infantryman Badge (CIB) on 1 December 1944 while assigned to the 104th Infantry Regiment.

4.  He departed the ETO on 18 January 1946 and was transferred to Fort Dix, New Jersey, where he was honorably discharged in the rank of private first class on 2 February 1946.  His WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge) issued at the time of his discharge shows he participated in the Ardennes, Central Europe, and Rhineland Campaigns and was awarded the European-African-Middle Eastern Service Medal, Army Good Conduct Medal, and WWII Victory Medal.  He was subsequently awarded the Bronze Star Medal (BSM) based on his award of the CIB.

5.  Block 34 (Wounds Received in Action) of his WD AGO Form 53-55 contains the entry "NONE."  

6.  There is no evidence in the available records to show the applicant was wounded or injured as a result of enemy action or that treatment for such wounds/injuries were made a matter of record.

7.  On 21 July 2009 in response to an inquiry from the applicant's congressional representative, the Military Awards Branch of the U.S. Army Human Resources Command (HRC) notified the applicant's Congressional representative that a review of the Surgeon General's Office Hospital Admission listings for the period in question failed to show the applicant was treated for injuries that were a direct result of enemy action or that such treatment was made a matter of record.  Officials at HRC also opined that the applicant's compensation from the VA for cold injuries to his feet was not sufficient to establish his entitlement to award of the Purple Heart and HRC was unable to verify his entitlement based on the available evidence.  HRC did establish his entitlement to award of the BSM based on his award of the CIB and appropriately awarded it at that time.

8.  Army Regulation 600-45, then in effect, provided, in pertinent part, for the award of the Purple Heart to personnel severely frostbitten while actually engaged in combat.

9.  Army Regulation 600-8-22 (Military Awards), currently in effect, states the Purple Heart is awarded for a wound/injury sustained in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify 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.  In pertinent part it states, “…Examples of injuries or wounds which clearly do not qualify for award of the Purple Heart are as follows:  (a) Frostbite or trench foot injuries.” 

DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant's claim that he was awarded the Purple Heart while in a hospital in France and refused the award is not in doubt, the available evidence does not establish he was wounded or injured as a result of enemy action or that treatment for his wounds or injuries were made a matter of record.

2.  It is also regrettable that the applicant's records were destroyed in the 1973 fire at the NPRC, which makes it difficult at best to determine what actually occurred in the applicant's case 65+ years ago.

3.  It appears the applicant may have suffered from trench foot and, unfortunately, trenchfoot did not meet the criteria outlined in either the old or current regulations for award of the Purple Heart.


4.  Therefore, in the absence of evidence to show he met the criteria for award of the Purple Heart, there appears to be no basis to award it to him at this time.

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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices made by him in service to the United States during WWII.  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)                                         AR20100027881



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ABCMR Record of Proceedings (cont)                                         AR20100027881



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