MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 8 April 2003
         DOCKET NUMBER: AR2002079538


         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
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Ms. Barbara J. Ellis		Member
Ms. Linda M. Barker		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 earlier appeal to correct his military records by awarding him the Purple Heart for injuries suffered while he was a prisoner of war.

APPLICANT STATES: In effect, that he is entitled to the Purple Heart because he was wounded on the "front lines" and he suffered physical and mental abuse from the German prison guards while he was a prisoner of war.

The Board noted the applicant's contention that the DD Form 215 (Correction to DD Form 214), dated 29 October 1999, does not show award of the Combat Infantryman Badge. However, the applicant's WD AGO Form 53-55 (Enlisted Record and Report of Separation) shows entitlement to the Combat Infantryman Badge in item 31 (Military Qualification and Date). His DD Form 215 shows award of the Bronze Star Medal (based on award of the Combat Infantryman Badge).

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in the Memorandum of Consideration prepared to reflect the Board's previous consideration of the Docket Number AR1999017489 by the Army Board for Correction of Military Records (ABCMR) on 19 August 1999.

On 13 August 2001, the staff of the ABCMR reviewed a request for reconsideration and the staff determined that the applicant had not provided any new evidence and his request was closed without further action.

The applicant provided a letter of explanation, dated 6 August 2002. He contends that he was "all cut up from the bullet and tank shells hitting the buildings we were in" and that he refused the Purple Heart on the front lines because the medic was going to send it home to his parents. He also states that he suffered physical and mental abuse from the German prison guards on a daily basis and one day he was kicked in the head by a guard.

The applicant also provided articles on former prisoners of war who received the Purple Heart.

The applicant’s arguments and submissions are new evidence which will be considered by the ABCMR.

The applicant's WD AGO Form 53-55 (Enlisted Record and Report of Separation), which was authenticated in his own hand, does not show the Purple Heart as an authorized award. Item 34 (Wounds Received in Action) on his WD AGO Form 53-55 shows the entry, "None."


There is no evidence in the available records that shows the applicant was awarded the Purple Heart or was wounded as a result of hostile action during World War II.

There are no service medical records or repatriation physical examination in the available records.

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

During World War II and the Korean War the Purple Heart was not awarded to soldiers who had been injured while in captivity or while being taken captive. These injuries were considered to be the result of war crimes and not the result of a legal action of war. War Department policy, at that time, required that wounds must have been received in action against the enemy or, in other words, incurred in actual combat. Executive Order 11016, dated 25 April 1962, provided more latitude with respect to award of the Purple Heart to prisoners of war, as well as the authority to award the decoration to wounded soldiers even in the absence of a formal declaration of war. The issue as to whether this change in policy would be implemented retroactively to prisoners of war from World War I, World War II, and the Korean War was considered several times. Initially it was decided that the change in policy would not be retroactively implemented. It was concluded that it would be inappropriate for the Department of Defense to retroactively change the standards and, in effect, countermand the decisions of the past leadership. However, as part of the National Defense Authorization Act (NDAA) of 1996, Congress authorized award of the Purple Heart to any former prisoner of war who was wounded before 25 April 1962 while held as a prisoner of war, or while being taken captive, in the same manner as a former prisoner of war who was wounded on or after that date.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.

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. There is no evidence of record available to the Board which shows the applicant was wounded or treated for wounds as a result of hostile action during World War II.

2. The applicant signed his discharge document on 4 December 1945 attesting to the fact that he was not wounded in action and was not entitled to award of the Purple Heart.

3. The Board considered the applicant’s contention that he suffered physical and mental abuse from German prison guards while he was a prisoner of war. However, there is no repatriation physical or any evidence of record available to the Board which shows the applicant was injured or wounded while held as a prisoner of war during World War II. Therefore, the applicant is not entitled to award of the Purple Heart for injuries sustained while in captivity during World War II.

4. After review of all the evidence in this case and the latest submissions, this Board also concluded the applicant has presented no argument or evidence which is sufficient to reverse the previous decision rendered by the ABCMR in Docket Number AR1999017489 on 19 August 1999.

5. Further, this Board also determined, after review of all the evidence in this case, that there is insufficient evidence upon which to base award of the Purple Heart in this case.

6. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

7. 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

RJW____ BJE_____ LMB_____ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

---

INDEX

CASE ID	AR2002079538
SUFFIX
RECON	Yes
DATE BOARDED	20030408
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	107.0015
ISSUES 1.
2.
3.
4.
5.
6.