IN THE CASE OF:	  

		BOARD DATE:  19 April 2012

		DOCKET NUMBER:  AR20110021510 


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, in effect, correction of his WD AGO 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) to show award of the Purple Heart.

2.  The applicant states he was captured in the Ardennes on 19 December 1945 [sic].  He was marched to an assembly point and loaded on a train on 23 December.  The train was bombed by the British since it was in a railroad yard outside a prison camp.  His frozen feet occurred during the period he was exposed to the elements at the assembly point and during the train ride.  He was treated at the prison camp for his frozen feet by a very primitive method.  After liberation and repatriation to Camp Chaffee, AR, he reported to the base hospital where he was evaluated prior to being returned to full duty.  He applied for the Purple Heart in November 1945 before his discharge from the Army.  The medal came in the mail sometime in 1946.

3.  The applicant provides:

* A photograph of the Purple Heart with his name engraved on the back of the medal
* A note card
* VA (Department of Veterans Affairs) Form 29-586 (VA Certification of Change or Correction of Name)
* A letter
* A VA Rating Decision

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 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 to conduct a fair and impartial review of this case.

3.  The applicant's reconstructed records show he was inducted into the Army of the United States on 24 May 1943 and he entered active duty on 7 June 1943 at New York City, NY.  At the time of his separation, he held military occupational specialty 405 (Clerk Typist) and was assigned to Company C, 422nd Infantry. 

4.  His WD AGO Form 53-55 shows he departed the continental United States (CONUS) on 21 October 1944 and arrived in the European-African Middle Eastern (EAME) Theater of Operations on 29 October 1944.  The specific date he departed the EAME Theater of Operations is unknown; however, he arrived back in CONUS on 24 June 1945.  

5.  On 22 November 1945, he was honorably discharged by reason of demobilization at Camp Chaffee, AR.  He completed 1 year, 9 months, and 12 days of continental service and 8 months and 4 days of foreign service.

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

7.  His reconstructed record shows he was held as a prisoner of war (POW) from 19 December 1944 to on or about 8 January 1945.


8.  This is no evidence in his reconstructed record that shows he was wounded while held as a POW or while being taken captive.  There is no evidence that shows he incurred or was ever treated for an injury due to frostbite while on active duty.

9.  His reconstructed record shows on 5 October 1945 he was treated at Camp Chaffee Station Hospital for "diarrhea, cause not specified" and returned to duty on that same date.

10.  There is no evidence in the reconstructed records that shows the applicant was awarded the Purple Heart or was wounded as a result of hostile action during World War II.

11.  Army Regulation 600-45 (Decorations), in effect at the time, governed the award of Army decorations until 23 August 1951, stated the Purple Heart was awarded to citizens of the United States serving with the Army who were wounded in action against an enemy of the United States or as a direct result of an act of such enemy provided such wound necessitated treatment by a medical officer.  This regulation stated that for the purpose of considering an award of the Purple Heart, a "wound" is 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.

12.  Section 521a of the National Defense Authorization Act of 1996 authorized award of the Purple Heart to any former POW who was wounded before 25 April 1962 while held as a POW or while being taken captive, in the same manner as a former POW who was wounded on or after that date.  Section 521b specifically stated that award of the Purple Heart for prisoners of war under Section 521a shall be made in accordance with the standards in effect on the date of the enactment of this Act to persons wounded on or after 25 April 1962.

DISCUSSION AND CONCLUSIONS:

1.  The criteria for the Purple Heart requires the submission of substantiating evidence to verify that a Soldier received a wound/injury as a result of hostile action, the wound/injury must have required medical treatment by medical personnel, and the medical treatment must have been made a matter of official record.  This included Solder's who were severely frostbitten while engaged in combat, or POW who were wounded/injured while being taken captive or while held in captivity. 
2.  Notwithstanding the applicant's sincerity, there is no evidence in his available record that shows he incurred an injury due to frostbite while engaged in combat, while being taken captive, or while held in captivity.  In the absence of evidence that shows he was wounded/injured as a result of enemy action or while a POW, and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case.

3.  Nevertheless, 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.

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)                                         AR20110021510





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ABCMR Record of Proceedings (cont)                                         AR20110021510



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