IN THE CASE OF:  	  

		BOARD DATE:  9 October 2014  	  

		DOCKET NUMBER:  AR20140000592 


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 application for award of the Purple Heart. 

2.  He states he is a disabled veteran receiving 100% benefits through the Department of Veterans Affairs (VA) and he is also a Prisoner of War who was injured while a captive of the Germans in World War II. Ten percent of the compensation received is for his leg wound.  His right leg sustained shrapnel wound while on a Prisoner of War train (strafed by an aircraft) in August 1944.  

3.  He adds that he has been trying to get the Purple Heart awarded since the rules changed in 1996.  New rules apply under the provisions of Public Law 104-106, Division A, Title V, section 521, dated 10 February 1996, "STAT 309."  The rules did not allow the Purple Heart to be issued while held captive as a Prisoner of War in 1945.  He has been turned down twice for this award.  

4.  He states he is doing a follow-up based on a letter from Mrs. MR, American Ex-Prisoners of War to Lieutenant Colonel MS, Chief, Military Awards Branch, U.S. Army Human Resources Command (HRC).  He would like to know why the U.S. Army would give him a rated disability at the time of his discharge if he was not wounded or injured?  He spent 9 months in a Prisoner of War camp and his discharge even states he was in the hospital at Camp Shanks, NY, where he received his disability rating.  



5.  The applicant provides:

* Certificate of Disability
* Clinical Record Brief, Camp Shank, NY
* a letter from Mrs. MR
* POW documents from the National Archives and Records Administration (NARA)
* documents from the VA including a veterans identification card
* discharge documents 

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 AR20070007822, on 23 October 2007.  The Board found that there was insufficient evidence to show he was wounded by friendly fire while on a troop train as a Prisoner of War.  It did however grant him the Bronze Star Medal based on award of the Combat Infantryman Badge and the Prisoner of War Medal for the period 30 August 1944 to 29 April 1945. 

2.  He provided new evidence that will be considered by the ABCMR for this request.  

3.  A review of the NARA, Prisoner of War Data File shows he was interned on 30 August 1944 by German forces while serving in the European Theater of Operations:  France.  

4.  A Clinical Record Brief indicates he was admitted to Hospital Station Camp Shanks, NY, on 13 October 1945.  The final diagnosis shows "Cicatrix, right ankle antero-lateral surface, adherent, painful with restricted ankle motion, result of several operations performed while a Prisoner of War."  The injury happened in the line of duty.  Information pertaining to the cause of his initial injury is not listed.  

5.  His Certificate of Disability for Discharge, dated 19 November 1945, shows the same diagnosis as the Clinical Record Brief and adds that date of onset of injury occurred in November 1944 and he became unfit for duty 18 October 1945. It also states his injury was incident to service and in the line of duty.  

6.  He was honorably discharged on 21 November 1945.  Item 34 (Wounds Received in Action) of his WD AGO Form 53-55 (Enlisted Record and Report of Separation) contains the entry "None."  Item 40 (Reason and Authority for Separation) shows he was discharged with a Certificate of Disability for Discharge.  

7.  The documentation he provided from the VA shows:

	a.  A 12 December 1996 Compensation and Pension examination set out to determine, in part, if he had peripheral neuropathy of lower extremities and if so, was it probably versus possibly caused by his exposure to cold in the winter of 1944/1945 in Germany while a Prisoner of War.

	b.  He was rated 100% disabled due to various service-connected disabilities. Thirty percent of his rating came from residuals of a foot injury; the disability coded listed is 5284.  A 5 February 1997, letter from the VA shows he was given 10% for right leg neuropathy.

8.  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" 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" pertains to weather and the award of this decoration to personnel who were severely frostbitten is authorized.

9.  Army Regulation 600-8-22 (Military Awards) states that individuals wounded or killed as a result of “friendly fire” in the “heat of battle” will be awarded the Purple Heart as long as the “friendly” projectile or agent was released with the full intent of inflicting damage on or destroying enemy troops or equipment.

10.  Public Law 104-106, section 521 states for purposes of award of the Purple Heart, the Secretary concerned (as defined in section 101 of Title 10, U.S. Code) shall treat a former Prisoner of War who was wounded before 25 April 1962 while held as a Prisoner of War (or while being taken captive) in the same manner as a former Prisoner of War who is wounded on or after that date while held as a Prisoner of War (or while being taken captive).

11.  The VA Schedule of Ratings shows code 5284 as "foot injuries, other" and a VA disability award of 30% is for severe injuries.  

12.  Merriam-Webster lists the definition of cicatrix as a scar resulting from formation and contraction of fibrous tissue in a flesh wound.  

13.  An internet medical website states neuropathy is a general term that refers to diseases or malfunctions of the nerves.  Any nerves at any location in the body can be damaged from injury or diseases.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he is entitled to award of the Purple Heart for a shrapnel wound he sustained to his right leg while a Prisoner of War.

2.  From the best available records, the applicant is shown to have been a POW from 30 August 1944 through 29 April 1945.  He was authorized award of the Prisoner of War Medal and the Bronze Star Medal based on award of the Combat Infantryman Badge.  

3.  The Board's previous decisional document states there was a lack of evidence to show that the applicant was wounded and the date of his injury.  His Certificate of Disability for Discharge shows November 1944 as the approximate period of his injury and this was during the period of his captivity.  At the time of his separation from the service, the Purple Heart was not authorized for any wounds or injuries a Soldier sustained while held as a Prisoner of War.  

4.  He claims that he sustained a shrapnel wound to his right leg when his Prisoner of War train was attacked by friendly aircraft in August 1944 and he was captured in August 1944; therefore, it is reasonable to presume this scenario is plausible.  The only qualifying injury documented as occurring during his period of captivity was listed as cicatrix (flesh wound), right ankle with restricted motion that resulted from several operations performed while a Prisoner of War.  

5.  After his return to the United States, he was admitted to Camp Shanks Station Hospital, NY, for the period 18 October to 19 November 1945 and the cicatrix is the main condition listed in his Certificate of Disability.  This is sufficient evidence to show he received military medical treatment for these injury and conditions, and that the treatment was made a matter of official military record.

6.  It is reasonable to conclude that the injuries he received were a result of friendly fire action.  His captors treated this wound with several surgeries that eventually resulted in the restricted movement and neuropathy, which the VA granted him 30% for this condition and listed it as being severe.  

7.  Therefore, the flesh wound he received to his right ankle should be considered to be the result of "friendly fire" and, in accordance law, is to be treated in the same manner as a member who is wounded in action as the result of an act of an enemy of the United States.  Accordingly the applicant should be awarded the Purple Heart for this injury effective 1 November 1944 and add this award to his WD AGO Form 53-55.

BOARD VOTE:

____X___  ____X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20070007822, dated 23 October 2007.  As a result, the Board recommends that all Department of the 
Army records of the individual concerned be corrected by:

	a.  awarding him the Purple Heart for injuries sustained as a result of friendly fire on 1 November 1944 and

	b.  adding the Purple Heart to his WD AGO Form 53-55.  



      ____________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)                                         AR20140000592





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ABCMR Record of Proceedings (cont)                                         AR20140000592



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