IN THE CASE OF: BOARD DATE: 20 April 2020 DOCKET NUMBER: AR20190013558 APPLICANT REQUESTS: reconsideration of his earlier request for award of the Purple Heart. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 20 October 2019 * DA Form 1 (Morning Report), dated 9 February 1945 * five photographs, undated * Commander's Statement, undated * War Department Adjutant General's Office (WD AGO) Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge) * Honorable Discharge Certificate, dated 2 August 1946 * Department of Veterans Affairs (VA) letter, dated 4 October 1989 * U.S. Total Army Personnel Command (now known as the U.S. Army Human Resources Command (HRC)) letter, dated 14 November 2000 * House Ear Clinic, Incorporated letter, dated 29 November 2000 * PT Motion News Release, dated 4 September 2012, subject: Army Awards Almost 1,000 Purple Hearts for Concussions * Consular General of France, Los Angeles French Consulate letter, dated 5 January 2015 * email, Congressional correspondence, dated 25-28 May 2019 * Congressional correspondence, dated 30 May 2019 * Privacy Release Form, dated 30 May 2019 * Awards and Decorations Branch, HRC letter, dated 21 August 2019 * email, Congressional inquiry, dated 25 October 2019 FACTS: 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 AR2003099079 on 15 July 2004. 2. The applicant states: a. He was a combat infantryman blown off a hill by German rockets during the Battle of the Bulge in one of General Patton's units. b. A World War II hospital report, dated 2 April, reported "acoustic blast, traumatic brain injury, and concussion." The Army did not consider these injuries to be war wounds at the time and refused to grant him the Purple Heart. Since then, the Army has changed its policy and now considers concussion a war injury. c. The VA granted him 100-percent disability compensation for his concussion. His sense of balance was damaged and he must use a wheel chair and hold on with both hands or else he falls. d. On 14 November 1994, he requested copies of his records from the National Personnel Records Center and he was advised his records may have been destroyed in the 1973 fire at the facility. 3. The applicant's complete 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. These records consist of files provided from a partial reconstructed record by the National Archives and Records Administration, National Personnel Records Center, and documents provided by the applicant. 4. The applicant provided new documentary evidence and new arguments that were not previously considered by the Board that warrant consideration at this time. 5. On 4 September 1944, the applicant was inducted into the Army of the United States. 6. On 24 January 1945, he departed the Continental United States and he arrived in European-African-Middle Eastern Theater of Operations on 31 January 1945. 7. He provided a copies of: a. a DA Form 1, dated 9 February 1945, that shows he was among Soldiers of Company A, 358th Infantry Regiment, who participated in an attack against pillboxes and fortified positions, knocked out some fortifications, and took some prisoners, at Brandscheid, Germany, and b. a DA Form 1, dated 5 March 1945, that shows his duty status changed effective 1 March 1945 and he was hospitalized at Wallersheim, Germany. He was given a "non- battle casualty; dropped from assignment" medical profile. 8. On 2 August 1946, he was honorably released from active duty. His WD AGO Form 53-55 shows in: a. item 31 (Military Qualifications and Date) – Combat Infantryman Badge, February 1945. b. item 32 (Battles and Campaigns): * Rhineland * Central Europe c. item 33 (Decorations and Citations): * European-African-Middle Eastern Campaign Medal * Army Good Conduct Medal * World War II Victory Medal * Army of Occupation of Germany Medal d. item 34 (Wounds Received in Action) – none, e. item 36 (Service Outside the Continental U.S. and Return) – he departed the U.S. on 24 January 1945 and he arrived in the European Theater of Operations on 31 January 1945; he departed the European Theater of Operations on 12 July 1946 and he arrived in the U.S. on 22 July 1946. 9. His records contained a DD Form 214 (Report of Separation from the Armed Forces of the United States) for the period ending March 1952, showing he enlisted in the Air Force and he served on active duty for a period of 1 year, 7 months, and 4 days. 10. He provided a copy of his VA letter, dated 2 June 1989, that shows he was granted disability benefits for non-service connected trench-foot, concussion, back injury, and vertigo. The rating determination was based on a commander' statement, undated, and a letter from his private physician, dated 16 June 1989. a. The commander's statement, undated, indicated the applicant suffered a concussion and he was on limited duty. b. The letter from the applicant's private physician, dated 16 June 1989, indicated the applicant reported over 10 years of vertigo, with the first episode occurring after a concussion while on active duty. His physician stated that in the past 10 years, the applicant had had several episodes of severe vertigo with three episodes being particularly severe and within the last 3 years, he had responded to medication. He further indicated the applicant had no other serious head trauma in the past; history otherwise benign with no surgery and the applicant was given an electroencephalogram to rule out seizure in the left temporal area which was found to be normal. 11. The applicant provided copies of: a. his VA Form 21-4138, dated 8 June 1989, that shows he disagreed with the VA determination of his non-service connected disability rating, stating in effect, the concussion he suffered has caused the vertigo he was still suffering, as he experienced the same condition in combat and continued to have. b. a letter from his physician, University of San Diego School of Medicine and Attending Neurologist, VA Hospital – La Jolla, CA, dated 4 October 1989, in response to the VA's determination on the applicant's concussion and vertigo. He indicated a repeat case history revealed, in part, the applicant was "taken unconscious to an evacuation unit for treatment" and at the time, "he was hemorrhaging from both ears, loss of hearing, and vertigo associated with accompanying symptoms of nausea, vomiting, diarrhea and nystagmus." The applicant's hospitalization was followed by months in a convalescent facility. Because of the injury, he was placed on limited duty assignment, where he remained until discharge. His physician concluded that based on all available information, the applicant's concussion and vertigo were caused by the rocket bombardment and his subsequent attacks were all related and service-connected. c. his VA Transcript of Hearing, dated 30 October 1989, in which he provided details surrounding the incident during his military service which caused his unconsciousness and his subsequent health. d. his Board of Veterans Appeals denial letter, dated 19 July 1990, wherein his claim for service connection for residuals due to concussion and vertigo were denied. e. a letter from the Chief, Military Awards Branch, U.S. Total Army Personnel Command (now HRC), dated 14 November 2000, in response to his request for the Purple Heart. The applicant was advised of criteria for award of the Purple Heart and official documentation reflecting medical treatment for his wounds or injuries must be provided. He was further advised the Purple Heart could not be authorized because the Morning Report he provided, dated 5 March 1945, indicated he was hospitalized as a non-battle casualty. f. his VA Rating Decisional Document, dated 26 July 2002, that shows he was granted service-connected disability benefits for post-traumatic stress disorder, vertigo, tinnitus and he was denied service-connected disability benefits for hearing loss. g. his appeal, dated 8 September 2002, to his VA rating decision denying him a service-connected disability benefit for hearing loss. 21. On 15 July 2004 and in ABCMR Docket Number AR2003099079, the ABCMR denied his application for award of the Purple Heart. The Board found the available records indicated he sustained a head injury and that on or about 1 March 1946, he was hospitalized. However, there was no substantiating evidence that the injury was the result of hostile action. 22. On 9 May 2005, he was issued DD Form 215 (Correction to DD Form 214) which corrected his WD AGO Form 53-55, dated 2 August 1946. The corrections did not include award of the Purple Heart. 23. His records are void of a recommendation for or orders awarding him the Purple Heart. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. Per the regulatory guidance on awarding the Purple Heart, the applicant must provide or have in his service records substantiating evidence to verify that he was injured, 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. 2. In events involving TBI and other similar injuries, the applicant’s record must show that the brain injury or concussion severe enough to cause either loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the concussive incident. After reviewing the application and all supporting documents, the Board found insufficient medical evidence to meet the regulatory standard for the Purple Heart and thus recommended denying the request. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XXX :XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 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 to amend the decision of the ABCMR set forth in Docket Number AR2003099079 on 15 July 2004. 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. REFERENCES: 1. Title 10, United States 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 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. 2. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. The Purple Heart is awarded for a wound 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 a medical officer, and the medical treatment must have been made a matter of official record. a. Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows: (1) Injury caused by enemy bullet, shrapnel, or other projectile created by enemy action. (2) Injury caused by enemy-placed trap or mine. (3) Injury caused by enemy-released chemical, biological, or nuclear agent. (4) Injury caused by vehicle or aircraft accident resulting from enemy fire. (5) Concussion injuries caused as a result of enemy-generated explosions. (6) Mild traumatic brain injury or concussion severe enough to cause either loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the concussive incident. b. Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: (1) Frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951). (2) Trench foot or immersion foot. (3) Heat stroke. (4) Food poisoning not caused by enemy agents. (5) Chemical, biological, or nuclear agents not released by the enemy. (6) Battle fatigue. (7) Disease not directly caused by enemy agents. (8) Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action. (9) Self-inflicted wounds, except when in the heat of battle and not involving gross negligence. (10) Post traumatic stress disorders. (11) Airborne (for example, parachute/jump) injuries not caused by enemy action. (12) Hearing loss and tinnitus (for example: ringing in the ears). (13) Mild traumatic brain injury or concussions that do not either result in loss of consciousness or restriction from full duty for a period greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function. (14) Abrasions and lacerations (unless of a severity to be incapacitating). (15) Bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer) (16) Soft tissue injuries (for example, ligament, tendon or muscle strains, sprains, and so forth). (17) First degree burns. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190013558 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1