APPLICANT REQUESTS: In effect, correction of his military records to reflect award of the POW Medal and POW status. He states in his application that he was held prisoner in Czechoslovakia for 12 days in 1954. In subsequent correspondence to his congressman he stated that he was held prisoner of war in Czechoslovakia during World War II and feels very strongly that he should receive recognition for this time spent as a prisoner of war.
PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.
EVIDENCE OF RECORD: The applicants military personnel records were partially destroyed as a result of the fire at the National Personnel Records Center in 1973. Information contained herein was reconstructed from documents provided by the applicant.
He entered active duty in July 1953 and was assigned to Germany as a cook in January 1954. On 4 July 1954, while on leave and sightseeing with six other soldiers near the Czechoslovakian border the group may have accidentally crossed the border and were seized by Czechoslovakian border guard. The group was detained for 12 days before being returned to US control. News articles indicate the soldiers were well fed and had not been physically harmed.... There detention by the Czechoslovakian military is well documented in newspaper accounts submitted with his application.
On 4 June 1955 the applicant was released from active duty.
Army Regulation 600-8-22 states that the POW Medal was established 8 November 1985 and authorized for any person who, while serving in any capacity with the U.S. Armed Forces, was taken prisoner and held captive after 5 April 1917. Hostages of terrorists and persons detained by
governments with which the United States is not engaged actively in armed conflict are not eligible for the medal.
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. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.
In the processing of this case, a staff advisory opinion (COPY ATTACHED) was provided by the Office of POW/MIA Affairs, at the Total Army Personnel Command (PERSCOM). It noted that the evidence did not support the applicants claim for POW status and recommended his request be denied. While the opinion also recommended that a legal opinion be obtained from the Office of the Staff Judge Advocate General (OTJAG) the Board deemed such an inquiry as unnecessary in view of the fact that a conversion record noted that the Deputy, OTJAG opined that the applicant does not meet the criteria of POW and also recommended his request be denied. Neither opinion contains information, advice or recommendation which would constitute a basis for granting the relief requested or for excusing the applicant's failure to timely file.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 8 November 1985, the date the POW Medal was established. The time for the applicant to file a request for correction of any error or injustice expired on 8 November 1988.
The application is dated 13 December 1994 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.
DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.
BOARD VOTE:
EXCUSE FAILURE TO TIMELY FILE
GRANT FORMAL HEARING
CONCUR WITH DETERMINATION
Karl F. Schneider
Acting Director
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