MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 October 2002
         DOCKET NUMBER: AR2002071980

         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. Carl W. S. Chun		Director
Mr. W. E. Schnupp		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Ms. Margaret V. Thompson		Member
Mr. Richard T. Dunbar		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)

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APPLICANT REQUESTS: That his military records be corrected to show, in effect, that he was a prisoner of war (POW) of the Japanese in the Philippines during World War II.

APPLICANT STATES: That from 11 through 13 April 1942, he was under Japanese captivity; that from the evening of 13 April 1942, when he escaped, through 3 March 1945, he was missing in action (MIA). He further states, that he had no idea at the time, that information regarding his captivity would be relevant to his claim for compensation under Public Law 105-85, passed 18 November 1997, which he only recently learned about.

In support of his request, he submits a copy of Special Orders Number 14, published by the East Central Luzon Guerilla Area dated 31 August 1945, awarding the applicant a brevet promotion to the rank of captain in the Guerilla Forces of the Commonwealth of the Philippines; a personal affidavit summarizing his experiences in the Philippines during World War II; a notarized letter from the officer in charge of the East Central Luzon Guerilla Area of the Philippine Islands (P.I.) during World War II acknowledging that the applicant was active as a guerilla in the P.I. during World War II; a copy of General Orders Number 9, published by the United States Army Forces, Pacific, dated 13 June 1945, awarding the officer in charge of the East Central Luzon Guerilla Area of the P.I. the Distinguished Service Cross and an affidavit from the applicant’s brother reiterating events regarding he and the applicant in the Philippines during World War II.

EVIDENCE OF RECORD: The applicant's military records show:

He was born on 19 September 1915. He enlisted in the 57^th Infantry (Philippine Scouts) on 15 July 1937, and served intermittently until 4 March 1945. He entered the active Army in the rank of sergeant on 5 March 1945 and was discharged on 12 July 1946. On 25 July 1946, he was appointed a second lieutenant and reentered active duty on 29 July 1946. He was relieved from active duty and placed on the retired list by reason of physical disability in the rank of first lieutenant on 26 January 1949 with 7 years, 11 months and 23 days active Federal service.

The applicant’s affidavit and that of his brother contend that they were prisoners of the Japanese and escaped during the Bataan Death March. The officer in charge of the East Central Luzon Guerilla Area of the P. I. says in his statement, that he personally knows the applicant and knows that he was active in the East Central Luzon Guerilla Area. Further, he states that instructions issued by his higher headquarters, the United States Army Forces Western Pacific, at the time, indicated that any officer or enlisted man who escaped from the Japanese after


the surrender of Bataan, and who later joined the guerilla forces, should be considered as having escaped from Japanese captivity for purposes of compensation of back quarters and subsistence allowances.

The applicant’s records contain no documentation showing that he was a prisoner of the Japanese.

The record contains an affidavit signed by the applicant on 5 August 1945. On page 1, the applicant states that, he did not surrender to the Japanese forces on 9 April 1942 at Signal Hill, Bataan, P.I. He goes on to state that during the Japanese occupation of the Philippines, the Japanese never employed him in any military or civilian capacity. On 9 April 1942, he separated from his unit at Signal Hill, Bataan, and, disguised as a civilian, started walking to his home in Pampanga. There he remained as a farmer for the duration of the Japanese occupation. In September 1944, he joined the Pampanga Military District Guerilla Forces and served in an administrative capacity but never accompanied them in attacks on the Japanese.

In a statement supporting a claim for promotion dated 11 June 1946, the applicant says that he actively participated in the Battle of Bataan from 7 December 1941 to 9 April 1942. After the official announcement of surrender of Bataan, he says that he evaded capture by escaping with two companions. During the Japanese occupation, he never worked with nor was employed by any puppet government agencies or the Japanese Imperial Army or Navy in a civilian or military capacity but he actively participated in guerilla warfare having been a member of the Pampanga Military District Guerilla Forces.

On 19 January 1946, the applicant claimed that that he was MIA from 1 December 1941 to 4 March 1945, and requested a determination of his casualty status. At that time, it was determined that he was not in a casualty status between 1 May 1942 and 11 January 1945 (2 years, 8 months and 10 days). Subsequent to his retirement, however, another determination was made that the 1 May 1942 through 11 January 1945 period should have been considered creditable service. Accordingly, action was taken on 7 October 1985, to amend his records to show that he was credited with the additional service for pay and retirement purposes. His record was corrected to show that he had 10 years, 8 months and 4 days service for pay purposes.

Public Law 105-85, Section 654, provides for payment of back quarters and subsistence allowances to World War II veterans who served as guerilla fighters in the Philippines. Payment shall be made to any individual who as a member of




the Armed Forces during World War II –
(1)      was captured within the territory of the Philippines by Japanese forces;
(2)      escaped from captivity; and
(3)      served as a guerilla fighter in the Philippines during the period from January 1942 through February 1945.

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. The applicant’s military records contain no evidence showing that he was a POW. In his affidavit of 18 August 2001, he claims that he was captured on 11 April 1942, and after 3 days, escaped. However, in his affidavit of 1945, and his claim for promotion in 1946, he says he was never captured by or worked for the Japanese, but rather worked as a farmer for the duration of the Japanese occupation and was a member of the local guerilla forces.

2. The officer in charge of the East Central Luzon Guerilla Area of the P. I. indicates, in his statement, that he knows the applicant and is aware of his involvement with guerilla forces during the war. He does not state that he was aware of the applicant ever having been a POW.

3. There appears to have been some question concerning the applicant’s absence during the period April 1942 to March 1945, and whether his absence should have been classified as a missing person. At the time, it was determined that he was not in a casualty status and thus, was not credited with longevity (for pay purposes) for that period. In 1985, however, it was concluded that his absence should have been recognized as creditable service time and he was awarded an additional 2 years, 8 months and 10 days of service credit for pay and retirement purposes.

4. The definition of individuals covered by Public Law 105-85, suggests that to be eligible for payment of back quarters and subsistence allowances, the individual must have been captured, escaped from captivity and served as a guerilla fighter. In the applicant’s case, he satisfies only one of these three conditions: he served as a guerilla fighter. There is no evidence in the record and he has provided insufficient evidence to show that he was a POW of the Japanese in the Philippines during World War II.

5. 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

___mvt___ ___jhl___ ___rtd___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002071980
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20021017
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1. 128.12
2. 130.00
3.
4.
5.
6.