RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: November 25, 2003
         DOCKET NUMBER: AR2003084695

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor		Chairperson
Ms. Lana E. McGlynn		Member
Ms. Yolanda Maldonado		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, in effect, that her deceased husband, a Former Service Member (FSM), be awarded the Purple Heart (PH).

2. The applicant states, in effect, that the FSM was a Prisoner of War (POW) for three years. She claims that while he was being held by the Japanese military, the FSM was beaten with a pick handle and sustained injuries as a result of these beatings. She cites the changes to the PH criteria made by Congress in 1996, which now allows former World War II POWs to receive the PH for wounds or injuries received while in that status, as the reason for her now making application for the award.

3. The applicant provides the following documents in support of her application: marriage certificate; FSM’s death certificate; extract of Public Law 104-106; FSM’s separation document (WD AGO 53-55); Office of The Surgeon General (OTSG) report of hospital admission card files for the period 1942-1945 pertaining to the FSMl; and Department of Veterans Affairs (VA) medical treatment records.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1. Counsel requests, in effect, that the FSM be awarded the PH.

2. Counsel, a Veterans Benefits Counselor with the Oregon Department of Veterans Affairs, states in effect, that the FSM endured more than any of us will ever know. Counsel further states that due to the beatings he received while he was a POW, the FSM eventually had to have his leg amputated.

3. Counsel provides copies of the FSM’s VA medical treatment records from 1948.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an injustice that occurred in 1945 that resulted from a law change contained in the National Defense Authorization Act (NDAA) of 1996. The application submitted in this case is dated 7 January 2002.

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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 FSM’s military records were not available to the Board for review. A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973. It is believed his records were lost in that fire.

4. The available records do include the FSM’s separation document
(WD AGO Form 53-55), which was issued to him on the date of his separation. This document verifies that he entered active duty on 20 August 1941, and that he continuously served until being honorably separated on 23 April 1945. It also confirms that at the time of his release from active duty, the FSM was a patient at the Barnes General Hospital, Vancouver, Washington, and that he was separated under a Certificate of Disability Discharge (CDD).

5. The separation document also shows that the FSM served in the Philippines with the 808th Military Police Company, from 23 October 1941 through
19 February 1945, and that he was a POW between 1942 and 1945. It also verifies that he earned the following awards during his tenure on active duty: Presidential Unit Citation; Good Conduct Medal; American Defense Medal; Philippine Liberation Medal; Asiatic-Pacific Campaign Ribbon; and POW Medal.

6. The available evidence also includes a military record finding report from the National Archives and Records Administration (NARA), dated 6 February 2003. This document contains information from hospital admission cards created by the Office of The Surgeon General (OTSG) for the period 1942-1945. It indicates that the FSM was admitted to a hospital in the Southwest Pacific on 10 February 1945, for treatment of an injury to his tibia (Osteomyelitis, hematogenous, chronic), and a secondary condition of specific deficiencies, beriberi.

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7. The DVA medical documents, provided by counsel, confirm the applicant was treated for a tibia related injury in DVA medical treatment facilities in 1948. They further verify that the FSM was a POW in a Japanese prison camp for three years; and while being held as a POW, a Japanese guard beat him over the shins with a pick handle. These medical documents provide further extensive explanation of the applicant’s treatment history for these POW related injuries.

8. In connection with the processing of this case, an advisory opinion was obtained from the Chief, Military Awards Branch, Total Army Personnel Command (PERSCOM). This official confirms that 1996 NDAA authorized the award of the PH to POW’s held captive prior to 25 April 1962, and who suffered wounds or injuries at the hands of their captors.

9. However, this PERSCOM official opines that the FSM is not entitled to the award. He bases this conclusion on the fact that the evidence provided is limited to information contained in a 1948 medical examination conducted by the VA and to the OTSG report, which indicated the injury was disease and the location to tibia generally. Further, that there was no official record confirmation that the FSM was wounded or injured while being held a POW. The applicant was provided a copy of this advisory opinion on 27 August 2003; however, to date she has failed to respond.

10. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart (PH) 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 required medical treatment; and the medical treatment was made a matter of official record.

11. Paragraph 2-8f states that for those who became Prisoners of War after
25 April 1962, the Purple Heart will be awarded to individuals wounded while prisoners of foreign forces, upon submission by the individual to the Department of the U.S. Army of an affidavit that is supported by a statement from a witness, if this is possible.

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12. The National Defense Authorization Act (NDAA) of 1996, authorized award of the Purple Heart retroactively to any former prisoner of war who was wounded before 25 April 1962 while being held as a prisoner or war or while being taken captive under the same standard as those wounded prior to 25 April 1962, as originally authorized.

13. Paragraph 3-13 of the awards regulation contains guidance on award of the Bronze Star Medal. It states, in pertinent part, that it may be awarded to eligible soldiers who participated in the Philippine Islands Campaign between
7 December 1941 to 10 May 1942. Performance of duty must have been on the island of Luzon or the Harbor Defenses in Corregidor and Bataan. Only soldiers who were awarded the Distinguished Unit Citation (Presidential Unit Citation) may be awarded this decoration.

14. Paragraph 5-13 contains guidance on award of the Asiatic-Pacific Campaign Medal. It states, in pertinent part, that a bronze service star is authorized with this award for each campaign a member is credited with participating in while serving the theater of operations.

15. Department of the Army Pamphlet 672-1 (Unit Campaign Participation Credit Register-World War II) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during World War II. This source confirms that during his tenure of assignment, the applicant’s unit (808th Military Police Company) received credit for participation in the Philippine Island Campaign and that it was awarded the Distinguished Unit Citation (DUC), now known as the Presidential Unit Citation (PUC), for the period 7 December 1941 through 10 May 1942.

DISCUSSION AND CONCLUSIONS:

1. The applicant’s contention that the FSM was entitled to the PH was carefully considered and it was determined that this claim has merit.

2. By regulation, in order to support awarding the PH to former POWs, it is necessary to establish that a member was wounded or injured while being held as a POW or while being taken captive. Supporting evidence must include an affidavit that is supported by a statement from a witness, if this is possible.

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3. As indicated in the PERSCOM advisory opinion, the standard evidentiary documentation required for awarding the PH to a former POW is not present in this case. However, the Board does find the information provided in the OTSG admission record, coupled with the VA medical documents provided by counsel are sufficiently credible to support the FSM’s entitlement to the PH, when coupled with the information contained in his separation record that confirms his POW status and that his discharge was disability related.

4. The OTSG admission record pertaining to the FSM confirms that he was admitted to a medical treatment facility in the Southwest Pacific for treatment of a tibia related injury in April of 1945 upon his release from POW status. The VA medical treatment records confirm both the nature and extent of the FSM’s injuries and document the circumstances under which they were received while the applicant was a POW.

5. The official supporting documents provided in this case are sufficiently convincing to accept in lieu of the required supporting affidavit and witness statement. Therefore, it is determined that the evidentiary standard has been sufficiently satisfied to warrant granting the requested relief in this case.

6. The evidence further shows that the applicant was credited with participation in the Philippine Island Campaign, for which he is entitled to receive 1 bronze service star with his Asiatic-Pacific Campaign Medal.

7. The evidence also confirms that he earned the DUC, now known as the PUC, for the period 7 December 1941 through 10 May 1942. As a result, he is entitled to receive the Bronze Star Medal, for his exceptionally meritorious achievement while participating in the Philippine Island campaign between 7 December 1941 through 10 May 1942.

8. In view of the foregoing, the applicant’s records should be corrected as recommended below.

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BOARD VOTE:

_LEM___ __YM__ __RO__ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief and to excuse failure to timely file. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

a. awarding the FSM the Purple Heart, for injuries received between
1942 and 1945 while being held a Prisoner of War in the Philippines by Japanese military forces during World War II;

b. awarding him the Bronze Star Medal, for his exceptionally meritorious achievement while participating in the Philippine Island campaign between
7 December 1941 through 10 May 1942;

c. showing that he is entitled to 1 bronze service star with his Asiatic-Pacific Campaign Medal based on his participation in the Philippine Island campaign; and

d. providing a corrected separation document that reflects this award.




                  Raymond V. O’Connor
                  CHAIRPERSON

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INDEX

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