RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 06 MAY 2004
         DOCKET NUMBER: AR2003095774


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

Mr. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Thomas D. Howard, Jr.		Chairperson
Mr. James E. Anderholm		Member
Mr. Ronald J. Weaver		Member

         The applicant and counsel if any, did not appear before the Board.

         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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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests award of the Purple Heart.

2. The applicant states that he should be awarded the Purple Heart for injuries he sustained while a prisoner of war (POW). After he was released as a POW, little was done to investigate the circumstances and experiences he had as a POW, including injuries sustained from harsh treatment.

3. The applicant provides a copy of a Department of Veterans Affairs (VA) rating decision.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error or injustice which occurred on 29 July 1945. The application submitted in this case is dated 3 July 2003.

2. 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. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant enlisted in the Army for three years on 17 February 1941. He was discharged on 29 July 1945. He served in the European Theater of Operations during World War II, first with the 26th Infantry Regiment, and after completing ranger training, served with Company B, 3d Ranger Battalion beginning in December 1943. His WD AGO Form 53-55 (Enlisted Record and Report of Separation) shows award of the American Defense Service Medal, the European-African-Middle Eastern Campaign Medal, and the Combat Infantryman Badge. That form shows that he participated in the Algeria-French Morocco, Tunisia, and Naples-Foggia campaigns.

4. The applicant was reported missing in action on 30 January 1944, and was later confirmed to be a POW. A German POW card indicates that he was imprisoned at Stalag IIB, a POW camp in Hammerstein, Germany.

5. He was released on 10 March 1945. A battle casualty report shows that he was evacuated from Odessa [in Russia] in April 1945.

6. A 20 July 1945 report of physical examination shows that the applicant received a physical profile of 1 1 3 1 1 1 for trench foot (bilateral).

7. The applicant's WD AGO Form 24 (Enlisted Record) shows award of the Distinguished Unit Badge (now the Presidential Unit Citation).

8. The 26th Infantry Regiment was awarded assault landing credit (award of the bronze arrowhead) for assault landings in North Africa from 8-10 November 1942 and in Gela, Sicily from 9-11 July 1943. The 3d Ranger Battalion was awarded assault landing credit for landing at Anzio on 22-23 January 1944.

9. On 29 October 1945 the applicant reenlisted in the Army for three years. His Soldier's Qualification Record shows that he completed airborne and glider training and in April 1947 was awarded the Parachutist Badge; in September 1947 the Gliderist (sic) Badge. In July 1947 he qualified as an expert with the rifle. He was discharged on 20 October 1948. His WD AGO Form 53 shows service in Japan from June 1947 to June 1948, award of the World War II Victory Medal, the Occupation Medal, and the Sharpshooter Marksmanship Qualification Badge with rifle bar. That form also shows completion of the basic airborne course and the gliderist (sic) course.

10. The applicant enlisted in the Air Force on 7 December 1951. He retired with more than 20 years of active federal service on 31 July 1964.

11. In addition to the awards indicated above, the applicant's records while serving as a Soldier, show award of the Bronze Star Medal, two awards of the Good Conduct Medal, the European-African-Middle Eastern Campaign Medal with bronze arrowhead for the invasion of North Africa on 8 November 1942, one silver and one bronze service star for participation in the Algeria-French Morocco, Tunisia, Sicily, Naples-Foggia, Anzio, and Rome-Arno campaigns, Army of Occupation Medal with Japan clasp, Parachutist Badge, Glider Badge, and American Campaign Medal

12. In applying for the POW Medal, the applicant indicated that he was a POW in Florence, Italy in January and February 1944, in camp (Stalag) 7A for two weeks in February and March 1944, and in Stalag IIB in Hammerstein, Germany beginning in March 1944. He escaped from a work detail, was recaptured 10 days later, escaped during the Russian push south, captured and placed in an American work camp for four weeks, escaped in January 1945 with an American friend in a wagon, dodged Germans and was captured by Polish soldiers and turned over to the Russians. He was released after two weeks to go the best way that he could to Warsaw and on to Odessa, Russia. He returned to American hands on 15 May 1945 in Maryland [Fort Meade].

13. A VA rating decision shows that the applicant was awarded a service connected disability rating for depressive reaction, post traumatic stress disorder, gastritis, appendectomy, and hearing loss.

14. Army Regulation 600-8-22 provides 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.

15. 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 post 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 or war, or while being taken captive, in the same manner as a former prisoner of war who was wounded on or after that date.

DISCUSSION AND CONCLUSIONS:

1. The applicant's treatment during his captivity cannot be determined. Unfortunately, there is no evidence, and the applicant has not provided any to show that he was injured while a POW. There is insufficient evidence to grant his request for award of the Purple Heart.

2. During his two periods of service in the Army, ending in October 1948, the applicant was awarded the Bronze Star Medal, the Combat Infantryman Badge, the World War II Victory Medal, the Parachute Badge, the Glider Badge, the Expert Marksmanship Qualification Badge with rifle bar, the American Defense Service Medal, the American Campaign Medal, the Army of Occupation Medal with Japan clasp, the Distinguished Unit Badge, two awards of the Good Conduct Medal, and the bronze arrowhead for the assault landings in North Africa, Sicily, and Anzio. He participated in six campaigns during World War II and was awarded the European-African-Middle Eastern Campaign Medal with one silver and one bronze service star. He was a POW and is entitled to award of the POW Medal. Some of these awards are indicated on his 29 July 1945 discharge form, and some on his 20 October 1948 form; however, some are not included on either form. These awards should be reflected on his 20 October 1948 WD AGO Form 53, his latest report of separation from the Army.

3. Records show the applicant should have discovered the alleged error or injustice now under consideration on 29 July 1945; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 28 July 1948. However, in view of the fact that the board was not established until 2 January 1947 the applicant’s 3 year period in which to file an application for correction of military records expired on 2 January 1950, 3 years from the date the Board was established. The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

4. Evidence shows that the applicant’s records contain administrative error which does not require action by the Board. Therefore, administrative correction of the applicant's records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 3 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__TDH__ __JEA___ __RJW__ DENY APPLICATION

1. The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.

3. The Case Management Support Division in St. Louis is requested to correct the applicant's 20 October 1948 WD AGO Form 53 to show award of the Bronze Star Medal; the Combat Infantryman Badge; the Glider Badge; the Expert Marksmanship Qualification Badge with rifle bar; the American Defense Service Medal; the American Campaign Medal; the Army of Occupation Medal with Japan clasp; the Presidential Unit Citation; the European-African-Middle Eastern Campaign Medal with one silver and one bronze service star; the bronze arrowhead for the assault landings in North Africa, Gela, Sicily, and Anzio; the POW Medal; and two awards of the Good Conduct Medal.




                  __Thomas D. Howard Jr.___
                  CHAIRPERSON

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INDEX

CASE ID	AR2003095774
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040506
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.	107.00
2.
3.
4.
5.
6.