RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           24 August 2004
      DOCKET NUMBER:  AR2004100462


      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             |
|     |Ms. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Melvin H. Meyer               |     |Member               |
|     |Mr. Patrick H. McGann, Jr.        |     |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 that his records be corrected to show that prior
to his discharge, he was promoted to the rank of staff sergeant and that he
be awarded all back pay and allowances due him.

2.  The applicant states that he should have been promoted to the next
highest pay grade when he was sent into combat in September 1944 and that
he was never promoted after he was captured on 10 October 1944.  He states
that Army Regulations in effect at that time allowed for all Soldiers to be
advanced to the next highest pay grade when they were going into combat and
that he was never given his advancement.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be awarded the Prisoner of War
(POW) Medal and that he be given consideration for promotion to staff
sergeant.

2.  Counsel states that Army Regulation 600-8-19 provides guidance
regarding the promotion of enlisted POW detainees, captured or surrounded
Soldiers against their will by a foreign country to be received by former
POWs.  Counsel states that Part 1-19 of that regulation provides that
enlisted Soldiers eligible for promotion will not be deprived of promotion
consideration while missing, captured, or detained and that these Soldiers
will be promoted by Human Resource Command – Alexandria.  Counsel further
states that this regulation provides that enlisted soldiers who are missing
in action, seized (especially during war), detained in a foreign country
against their will, captured, surrounded, or unable to escape due to
hostile fire(missing persons act) are eligible for consideration and
promotion.

3.  Counsel goes on to state that Army Regulation 615-5 was the promotion
regulation in effect at the time of the petitioner’s POW status and
governed the appointment and reductions of noncommissioned officer (NCO)
and soldiers in the rank of private first class.  Counsel states that the
regulation provides that oversea theater commanders and commanding
Generals, Army Ground Forces, Army Air Forces, and Army Service Forces
could waive the requirement for an authorized vacancy to appoint
temporarily to the next higher enlisted grade any enlisted person below the
first pay grade who was returned to the United States military control from
a status of POW, provided such personnel were in such status for a period
of 18 months or longer.  Counsel continues by stating that this regulation
also provides that NCOs appointed during an emergency under special
authorization of the War Department would be temporary appointments and
that in order to provide an opportunity to observe the performance of the
candidates for higher grades, unit commanders were authorized to exceed
their authorized allotments in any grade by the number of vacancies that
existed in a higher grade pending the promotion of the best-qualified
candidates.

4.  Counsel contends that Public Law 99-145, section 1128, title 10, United
States Code 1128 provides that the POW Medal is authorized for any person
who while serving in any capacity with the United States Armed Forces, was
taken prisoner and held captive after 5 April 1917.  Counsel states that
this law provides that military personnel and other personnel who were
granted creditable service, taken prisoner and held captive; while engaged
in an action against an enemy of the United states; while engaged in
military operations involving conflict with an opposing foreign force; and
while serving with friendly forces engaged in an armed conflict against an
opposing force in which the United States is not a belligerent party are so
entitled to the POW Medal.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged error or injustice,
which occurred on 2 December 1945.  The application submitted in this case
is dated 22 October 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.  He was inducted into the Army on 20 November 1942 and he successfully
completed his training as a rifleman.  The records are unclear as to the
exact dates that the applicant was advanced to the ranks of private first
class and corporal.  However, the available records show that he was
promoted to the rank of sergeant on 14 March 1944.

4.  On 9 October 1944, while in Germany serving in the rank of sergeant,
the applicant was wounded as a result of hostile action by enemy forces.
The records show that he was hit by shrapnel in his right forearm and that
he treated his own injury and continued to fight.  He was captured and held
as a POW on 10 October 1944 and a German doctor treated his injury while in
captivity.


5.  The applicant was repatriated on 1 May 1945.

6.  On 2 October 1945, via letter from the Office of The Adjutant General,
the applicant was furnished a temporary appointment to the rank of staff
sergeant, under the provisions of paragraph 18.2, The Adjutant Generals
Office letter, AG 383.6 dated 17 August 1945.

7.  The applicant was honorably discharged on 2 December 1945, as a result
of demobilization.  The Enlisted Record and Report of Separation (WD AGO
Form 53-55) that he was furnished at the time of his discharge shows that
he was awarded the American Theater Ribbon, the Good Conduct Medal, the
World War II Victory Medal, European-African-Middle Eastern Theater Ribbon
w/two Bronze Battle Stars, and the Combat Infantryman Badge.

8.  His WD AGO Form 53-55 was also annotated to show that he had no wounds
while he was in the Army; that he departed for the European Theater of
Operations on 24 August 1944; that he returned to the Continental United
States on 21 June 1945; that sergeant was his highest grade held; and that
his grade at the time of his discharge was sergeant.

9.  On 13 May 1982, the applicant was furnished a correction to his WD AGO
Form 53-55 (DD Form 215) to include the award of the Purple Heart and to
show that he was a POW from 10 October 1944 until 1 May 1945.

10.  On 10 August 1984, the applicant was notified that he was also
entitled to the Bronze Star Medal, the Presidential Unit Emblem, the
Meritorious Unit Emblem and the Honorable Service Lapel Button World War
II.  An appropriately inscribed certificate and copies of all of his awards
were furnished to him on this date.  However, these awards were never
included on his WD AGO Form 53-55.

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent
part, for award of the Prisoner of War (POW) Medal.  The regulation states
that the POW Medal was authorized on 8 November 1985 and is awarded to
individuals who, in past armed conflicts, were taken prisoner or held
captive.

12.  Army Regulation 600-8-22 also provides, in pertinent part, that the
Army of Occupation Medal (AOM) is awarded for service of 30 consecutive
days at a normal post of duty in a qualifying location.  Personnel at a
qualifying location as an inspector, courier, escort, temporary or detached
duty are precluded from eligibility.  For Germany, service must have been
between 9 May 1945 and 5 May 1955 and the European-African-Middle Eastern
Campaign Medal must have been awarded prior to 9 May 1945.

DISCUSSION AND CONCLUSIONS:

1.  In accordance with the applicable regulation, the applicant is entitled
to the POW Medal as he was taken prisoner and held in captivity from 10
October 1944 until he was repatriated 1 May 1945.

2.  He is also entitled to the Army of Occupation Medal for his service in
Germany and his WD AGO Form 53-55 should be corrected to reflect this
award.

3.   Although he has been awarded the Bronze Star Medal, the Presidential
Unit Emblem, the Meritorious Unit Emblem and the Honorable Service Lapel
Button World War II these awards were never included on his Report of
Separation and his WD AGO Form 53-55 should be amended to reflect these
awards also.

4.  Additionally, the evidence of record clearly shows that he was wounded
in action on 9 October 1944 and it would be appropriate at this time to
amend his WD AGO Form 53-55 show the date and the type of wound that he
received.

5.  The Board has noted counsel’s contentions.  However, the applicant
failed to meet the promotion criteria set forth in Army Regulation 615-5,
as he was not held as a POW for 18 months or longer and at the time there
were no provisions for automatic promotions to the next higher grade.

6.  Nonetheless, on 2 October 1945, via letter from the Office of the
Adjutant General and in accordance with paragraph 18.2 of AG 383.6 dated 17
August 1945, the applicant was furnished a temporary promotion to the rank
of staff sergeant.  Inasmuch as he was promoted prior to his discharge, his
WD AGO Form 53-55 should be amended to reflect his rank at the time of
discharge and his highest grade held as staff sergeant.

7.  The correction to his grade will also constitute entitlement to back
pay and allowances from the effective date of his promotion on 2 October
1945 through the date of his discharge on 2 December 1945.

BOARD VOTE:

__mkp___  __mhm___  __phm___  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 individual concerned the Prisoner or War Medal and
the Army of Occupation Medal;


      b.  amending his WD AGO Form 53-55 to show his entitlement to the
Bronze Star Medal, the Presidential Unit Emblem, the Meritorious Unit
Emblem, the Prisoner of War Medal, the Army of Occupation Medal, and the
Honorable Service Lapel Button World War II;


      c.  amending his WD AGO Form 53-55 to show that he was wounded by
shrapnel in his right forearm on 9 October 1944; and


      d.  amending his WD AGO Form 53-55 to show that staff sergeant was his
grade and his highest grade held at the time of his discharge and that he
be paid all back pay and allowances due him from 2 October 1945 until 2
December 1945, as a result of this correction.




                 Margaret K. Patterson
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100462                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040824                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT PLUS                              |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  302  |129.0000.0000                           |
|2.  307                 |129.0500.0000                           |
|3.  310                 |131.0000.0000                           |
|4.  319                 |131.0900.0000                           |
|5.  46                  |107.0000.0000                           |
|6. 75                   |107.0029.0000                           |


-----------------------
[pic]