MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

BOARD DATE:           6 May 1999                 
	DOCKET NUMBER:   AC97-05548A
				   AR1997015599

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn 		Chairperson	
	Mr. Ernest W. Suiter		Member	
	Ms. Carol Jo Suiter 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Reconsideration of his  previous application to correct his records by awarding him the Purple Heart for frozen feet in 
World War II.

APPLICANT STATES:   In effect, that he believes that he would have received the Purple Heart if the medical department staff had elected to treat him at the time, but that they were too busy to do so because the Battle of the Bulge was in progress.  He submits six affidavits from comrades-in-arms to substantiate his case.  He believes that all of the evidence he has submitted was not made available to the Board.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memoranda prepared to reflect the Board's previous considerations of his case on 14 May 1997 (COPY ATTACHED).

The documentation submitted by the applicant was available to the previous board, but it was not adequately described nor discussed.  Therefore the case is submitted for Board consideration.

Army Regulation 600-8-22 provides, in pertinent part, that 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 a medical officer, and the medical treatment must have been made a matter of official record.

Included as part of the Department of Defense Appropriations Act for fiscal year 1994 was an amendment to the rules governing award of the Purple Heart.  While the original rules established that the Purple Heart would be awarded to individual's killed or wounded as a result of hostile action the amendment enabled the Secretaries of each department to award the Purple Heart
to members of the armed forces who were killed or wounded in action by weapon fire, while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States.  This ruling, in effect, granted the service Secretaries the authority to award the Purple Heart to individuals directly engaged in armed conflict who were killed or wounded as a result of
"friendly fire." 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.   Although the Purple Heart has been awarded to soldiers for cold injuries this has been limited to instances where the individuals concerned were involved in direct contact with the enemy to the extent that they could not take care of 
themselves, seek shelter or obtain medical treatment.  The affidavits submitted make clear that the applicant sought medical attention but was not treated.  

2.  However, medical treatment is not the determining issue.  Rather, the case hinges on the extent to which the applicant’s cold injury could be attributed to enemy action.  The Board is not convinced that, in the convoy situation described by the applicant and his comrades , he should be considered to have been in action against the enemy or that his injury was the direct result of enemy action.

3 . The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__FNE___  __EWL__  __CJS__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC97-05548A
AR1999015599	
SUFFIX		
RECON		
DATE BOARDED	19990506	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	107.00	
2.		
3.		
4.		
5.		
6.