IN THE CASE OF:	  

		BOARD DATE:	  18 December 2014

		DOCKET NUMBER:  AR20140006835 


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, the son of a deceased former service member (FSM), requests correction of the FSM's WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge) to show he was wounded in action and that the FSM be awarded the Purple Heart.

2.  He states he has provided records showing the FSM was in hand-to-hand combat.  The FSM was knocked on the side of the head with a German's rifle butt, and he was knocked unconscious.  This happened in the European Theater of Operations (ETO) where the FSM served in France and in the vicinity of Aachen, Germany.  He was transported by stretcher to a hospital in Germany.  He realizes that most of the medical attention the FSM received was for bilateral frostbite (trench foot) and ongoing progressive anxiety disorder that was probably post-traumatic stress disorder.  He lists the basic criteria for award of the Purple Heart and states he has highlighted any reference to the FSM's injury in the available records.

3.  He provides:

* birth certificates
* death certificate
* service medical records
* Certificate of Disability for Discharge
* WD AGO Form 53-55
* Veterans Administration (VA) records

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 FSM's complete military records are not available for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center (NPRC), St. Louis, MO, in 1973.  It is believed his records were lost or destroyed in that fire.  This case is being considered using the documents provided by the applicant and records contained in a reconstructed record at NPRC.

3.  The FSM's WD AGO Form 53-55 shows he was inducted into the Army of the United States on 29 April 1944.  On 9 November 1944, he arrived in the ETO, and he departed on 25 December 1944.

4.  The available service medical records show he was received at Halloran General Hospital, Staten Island, NY, as a patient from overseas on 3 January 1945.  On 13 January 1945, he was admitted to Mayo General Hospital, Galesburg, IL.  At that time, he had been diagnosed with moderately severe bilateral trench foot and chronic nasopharyingitis.

5.  A WD AGO Form 8-82 (Pathological Examination of Tissue), dated 14 February 1945, shows he had a history of being struck on the right lower eyelid with the butt of a gun approximately two months earlier.  The available medical records describe the treatment he received for this injury, but do not indicate that the injury was the result of hostile action.

6.  A Clinical Record Brief shows he was transferred to a station hospital at Camp Ellis, IL, on 4 April 1945 to convalesce.  The form shows his final diagnoses, as of 20 April 1945, were bilateral moderate trench foot and psychoneurosis.

7.  A Certificate of Disability for Discharge shows a board of medical officers convened on 31 May 1945 and found the FSM had become unfit for military service because of trench foot incurred in combat 30 November 1944 in Germany.

8.  On 3 June 1945, he was honorably discharged.  His WD AGO Form 53-55 does not show award of the Purple Heart, and item 34 (Wounds Received in Action) shows the entry "None." 

9.  On 4 June 1945, he applied for compensation or a pension from the VA based on his military service.  He referenced his trench foot and a nervous condition, and he stated he had occasional headaches from having been knocked out in combat.  On 16 June 1945, he was awarded a pension based on disability resulting from nervousness and trench foot that had been incurred or aggravated during his war service.

10.  Army Regulation 600-8-22 (Military Awards) states 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 by medical personnel, and the medical treatment must have been made a matter of official record.  

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for correction of the FSM's WD AGO Form 53-55 to show he was wounded in action or that he be awarded the Purple Heart.

2.  The available records indicate the FSM was struck on the right lower eyelid with the butt of a gun prior to departing the ETO.  Unfortunately, there is no official record of who caused this injury or the date on which the injury was incurred.  Without such documentation, it would not be appropriate to amend his WD AGO Form 53-55 to show he was wounded in action or to award him the Purple Heart based on this injury.
3.  The FSM was diagnosed with bilateral trench foot and psychoneurosis.  Award of the Purple Heart is not authorized for either condition.  To receive the Purple Heart for an injury caused by cold conditions, the Soldier must have been diagnosed with frostbite, not trenchfoot, incurred while engaged in combat.  Award of the Purple Heart has never been authorized for psychiatric conditions incurred as a result of having been in combat.

4.  In view of the foregoing, there is an insufficient evidentiary basis upon which to grant the requested relief.

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)                                         AR20140006835





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ABCMR Record of Proceedings (cont)                                         AR20140006835



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