RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 MAY 2005
      DOCKET NUMBER:  AR20040006358


      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. John Slone                    |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Ms. Carmen Duncan                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests award of the Purple Heart.

2.  The applicant states that he was a prisoner of war (POW) IN 1944 and
1945 and was abused by guards.  The weapons they used were rifle butts to
the head and gun barrels to the ribs.  While the wounds were not life-
threatening, they did draw blood and took a long time to heal.  The lasting
psychological trauma will never heal.  The wounds caused by the abuse
qualify him for award of the Purple Heart.  In 1959 President Kennedy
signed an executive order stating that POW’s should be awarded the Purple
Heart.

3.  The applicant provides a copy of his WD AGO Form 100 (Separation
Qualification Record), a copy of his 29 November 1945 WD AGO Form 53-55
(Enlisted Record and Report of Separation), a copy of his 24 December 1947
WD AGO Form 53 (Enlisted Record and Report of Separation), and a copy of a
newspaper article concerning award of the Purple Heart for POWs.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 24 December 1947.  The application submitted in this case
is dated 16 August 2004.

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 limitations 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’s military records are 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 that the
applicant’s records were lost or destroyed in that fire.  However, there
are sufficient documents available for the Board to conduct a fair and
impartial review of this case.

4.  The applicant entered on active duty on 9 March 1943 and served with
the 106th Infantry Division in the European Theater of Operations during
World      War II, arriving in October 1944 and returning to the United
States in April 1945.
He was honorably discharged on 29 November 1945.  The applicant was awarded
the American Theater Medal, the European-African-Middle Eastern Theater
Medal, the Good Conduct Medal, the World War II Victory Medal, the Expert
Rifleman Badge, and the Combat Infantryman Badge.

5.  The applicant’s Separation Qualification Record shows that he was a
prisoner of war for three and one half months.

6.  The Adjutant General notified the applicant’s mother that he had been
reported missing in action in Germany since 21 December 1944.
Subsequently, she was notified that the applicant was a prisoner of war.
On 25 April 1945 she was notified that he had been returned to military
control.

7.  The applicant’s WD AGO Form 53 shows that he enlisted in the Army on
  10 February 1947 and was discharged on 24 December 1947 at Persy Jones
General Hospital in Battle Creek, Michigan, and issued a certificate of
disability.

8.  On 28 July 2002 the National Personnel Records Center authorized the
applicant be issued awards.  Two of the awards authorized, the Bronze Star
Medal and the POW Medal, are not reflected in his records.

9.  Army Regulation 600-8-2 prescribes Army policy, criteria, and
administrative instructions concerning individual military awards.
Paragraph 2-9 of that regulation authorizes award of the POW Medal, and
states that the POW Medal is 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.  The POW Medal is to be issued only to those
U.S. military personnel who were taken prisoner while engaged in an action
against an enemy of the United States.

10.  The above-mentioned regulation also provides for award of the Bronze
Star Medal to each member of the Armed Forces of the United States who,
after        6 December 1941 has been cited in orders or awarded a
certificate for exemplary conduct in ground combat against an armed enemy
between 7 December 1941
and 2 September 1945.  The award of a Combat Infantryman Badge is
considered as a citation in orders.

11.  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 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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  Although legislation did authorize award of the Purple Heart to former
prisoners of war, as indicated above, there must be substantiating evidence
to show that a POW was wounded as a result of hostile action.  While the
Board has no reason to doubt the applicant’s statements concerning the
injuries he incurred as a result of brutality by prison guards, such
statements are acceptable only where corroborating evidence is available
from official sources, and notwithstanding his disability discharge in
1947, there is no evidence to show that he was wounded as a result of
hostile action.  Consequently, there are no grounds for the Board to award
the Purple Heart.

2.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 December 1947, the date of his
separation from active duty.  As a result, the time for the applicant to
file a request for correction of any error or injustice expired on 23
December 1950.   However, 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 the
failure to timely file.

3.  The evidence shows that the applicant’s record contains administrative
error that does not require action by the Board.  The necessary corrections
will be accomplished administratively by the Case Management Support
Division (CMSD), St. Louis, Missouri, as outlined in paragraph 3 of the
Determination/Recommendation section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JS____  ___RD __  ___CD __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 at St. Louis is requested to
correct the applicant’s 24 December 1947 WD AGO Form 53 to show award of
the Bronze Star Medal and the POW Medal.




                                  _______John Slone_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040006358                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050517                                |
|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.                      |                                        |


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