RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 JULY 2005
      DOCKET NUMBER:  AR2004103487


      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. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. William Powers                |     |Chairperson          |
|     |Mr. Larry Bergquist               |     |Member               |
|     |Mr. James Gunlicks                |     |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 he be given credit for military service and
Prisoner of War status for the period of 14 July 1950 to 17 August 1953
with entitlement to associated back pay for that period and recalculation
of his retirement benefits.

2.  The applicant states, in effect, that he was a Japanese civilian
employed as a kitchen boy with Headquarters (Hq) Battery, 63rd Field
Artillery (FA) in Japan when the unit deployed to Korea on 4 July 1950.  He
further states that he accompanied the unit when it deployed to Korea and
was issued a weapon, ammunition and uniforms and was given a fake serial
number and rank to memorize.  He served with the unit until captured on 14
July 1950 and was held with American soldiers until 17 August 1953.

3.  He states that he has previously requested credit and has been denied
and recently exhausted his last avenue of administrative relief.

4.  The applicant provides statements from former Army members who were
present and had knowledge of the events at the time and support his
petition for relief.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that a very extensive account of
the applicant’s case is contained in his records to document the events
that have occurred since 4 July 1950 and the actions that have transpired
since then in attempt to change the applicant’s status at the time.

2.  The documents show that the applicant was born in Yamaguchi, Japan on
17 February 1930 and was hired as a kitchen boy to work in the mess section
of Hq Battery, 63rd FA, Hakata, Japan, in March 1950, after hostilities had
begun in Korea.  His employment was neither appropriated or non-
appropriated employment, but instead was paid for by members of the unit.
He received approximately $20.30 (7,300 Yen) per month in pay.

3.  On or about 1 July 1950, as the unit was preparing for deployment to
Korea during the Police Action that was expected to last about a week, the
applicant was asked by the unit commander at the time if he would accompany
the unit to Korea.  It should be noted that the condition of his employment
with that unit was



predicated on his providing a service to that unit.  If the unit departed
to another location, he was no longer employed.  He agreed and was deployed
to Korea on 4 July 1950.  The battery moved into a defensive position on 6
July 1950 at Chocuwon, South Korea and fighting with the communists began.
Communist forces overran his unit on 14 July and he was the only civilian
employee that was captured with the men of his battery.  However, he gave a
fictitious rank and serial number and posed as a United States Army Soldier
to avoid being shot by the North Koreans because he was a Japanese
National.

4.  Because Japanese Forces had occupied Korea for many years and the
Koreans spoke Japanese, according to the statements of support, the
applicant became the interpreter for the prisoners.  Documented accounts
from fellow prisoners indicate that the applicant was as loyal as any
American soldier captured and he worked diligently to care for and obtain
care for his fellow prisoners.  In many instances, because he took the side
of his fellow prisoners, he was punished (sometimes brutally beaten) in
their place.  His actions were always taken in complete disregard for his
own personal safety and for the betterment of his fellow prisoners as a
whole.

5.  On 17 August 1953, he was released from captivity and was returned to
Japan, where he was investigated for illegally departing Japan.  In
September 1953, the commanding general of the 24th Infantry Division
dispatched a personal letter to the applicant acknowledging him as one of
the heroes of the Korean War.  He acknowledged that the sacrifices the
applicant made for American Soldiers had been made known and that the 24th
Division owed him a debt of gratitude that could never be repaid.  He also
stated that he hoped that someday the applicant would be more appropriately
honored for his part in the struggle against communist aggression.

6.  He remained in Japan until the 13 remaining officers of the group
decided to repay the applicant for his unselfish devotion and courage
rendered during his    3 years as a prisoner of war.  The officers chipped
in and brought him to the United States to attend school in August 1954.
He attended a technical school in Tennessee from September to December 1954
and then attended a college in North Carolina from January to June 1955.

7.  On 11 August 1955, he was inducted into the Army of the United States
(AUS).  Under the terms of the Universal Military Training and Service Act,
as an alien of the requisite age who had been admitted to the United States
for other than permanent residence and who had remained in the country for
over


1 year, he could have applied to be relieved from liability for induction,
but thereafter would have been disbarred from becoming a citizen of the
United States.  He did not decline to serve and was therefore inducted into
the Army.

8.  He completed his basic training at Fort Dix, New Jersey and his
advanced individual training as a cannoneer at Fort Bliss, Texas.  Upon
completion of his training he was transferred to Japan, where he performed
duties of a cannoneer, power generator repairman, track vehicle mechanic,
light vehicle driver and photographer.  The applicant extended his
induction contract for a period of 1 year in order to be eligible for
naturalization in the United States, under the provision of law that
provided that aliens who serve for 3 years in the Armed Forces of the
United States were entitled to permanent resident alien status upon
application.

9.  While serving as a private first class in Japan, the applicant was
presented the Presidential Medal of Freedom in recognition of his heroic
assistance to American prisoners of war during the Korean conflict.
However, shortly thereafter, he was notified that he would not be able to
return to the United States on the expiration of his term of service (ETS),
because in order to qualify for naturalization and U.S. citizenship in the
United States, he would have had to have served in the Armed Forces of the
United States for a period of 3 years, and have been lawfully admitted to
the U.S. for permanent residence.  Instead the applicant had been lawfully
admitted on a temporary student visa.  The applicant sought assistance from
his chain of command, who intervened in his behalf and requested that
action be taken by the Department of the Army to obtain permanent resident
alien status for the applicant.

10.  In January 1957, due to the meritorious nature of the applicant’s
case, the Department of the Army initiated action to sponsor private
legislation in the session of the 85th Congress, to lawfully admit the
applicant into the United States for permanent residence in order that he
might qualify for naturalization.  At the time the request was submitted by
the then Secretary of the Army to the Speaker of the House of
Representatives, the Secretary of the Army assured the Speaker that the
legislation was submitted in accordance with Department of Defense
procedures, that the Bureau of Budget (now known as OMB) had advised that
it had no objections, that the Commanding General, United States Army Far
East and the Department of the Army recommended approval of the
legislation.  He also indicated that approval of the legislation would
require no expenditure of funds.  Private Law 85-652 was passed on 23
August 1958, which granted the applicant, as well as about a dozen other
individuals, lawful admittance and permanent residence in the United
States.

11.  It appears that he departed from Japan in January 1960 and was
transferred to Fort Huachuca, Arizona.  He was naturalized in Bisbe,
Arizona on 13 May 1960 and was honorably discharged on 10 August 1960, in
the pay grade of E-5.

12.  He again enlisted in Omaha, Nebraska on 22 August 1960 and was
transferred to Fort Leonard Wood, Missouri, where he underwent training as
a photographer.  Upon completion of his training he was transferred to
Korea.  He remained in Korea until August 1962, when he was transferred to
the Presidio of San Francisco, California.  He remained there until he was
transferred to Fort Monmouth, New Jersey on 1 December 1963, to attend
training as an automated data processing specialist.  He completed his
training and remained in that career field throughout the remainder of his
career.  He was promoted to the rank of specialist seven (SP7) on 15
February 1969, and served two tours in Okinawa and one tour in Vietnam.

13.  On 31 October 1975, he was honorably released from active duty in the
pay grade of E-7 and was transferred to the Retired List effective 1
November 1975.  He had served 20 years, 2 months and 9 days of total active
service.  He was awarded the Medal of Freedom, the Bronze Star Medal, the
Meritorious Service Medal, the Army Commendation Medal, the National
Defense Service Medal, the Good Conduct Medal (6th award), the Vietnam
Service Medal, the Republic of Vietnam Campaign Medal, the Meritorious Unit
Commendation, and the Republic of Vietnam Gallantry Cross with Palm Unit
Citation.

14.  In January 1976, the applicant accepted a government position as a
computer technician with the Civil Service Commission in Washington.  He
subsequently transferred to the Defense Investigative Service at Fort
Holabird, Maryland, from October 1976 to February 1980, and then accepted a
position as a programmer analyst at Camp Zama, Japan in March 1980.  He
retired from Federal Service on 9 March 1995.

15.  A review of the applicant’s records shows that he and other former
prisoners of war that were with the applicant at the time, have attempted
since 1956, to gain recognition and compensation for the time the applicant
spent as a prisoner of war during the Korean Conflict.  In each instance he
was informed that there were no provisions of law under which his request
could be approved.

16.  In 1956, while serving in the pay grade of E-3, The Acting Adjutant
General (TAG) of the Army responded to the applicant’s inquiry regarding
his eligibility to receive

compensation for his time as a Prisoner of War.  He informed the applicant
that there was no legislation which provided compensation to foreign
Nationals who were employed by the Army in a civilian capacity and who were
taken prisoner while in that employment.

17.  In 1957, the TAG responded to another inquiry by the applicant on
behalf of the Secretary of the Army.  He informed the applicant that at the
time in question he was a Japanese National that was hired in Japan and was
not required to go to Korea.  He voluntarily and freely accompanied his
unit as a kitchen boy after hostilities had begun and presumably acted with
full knowledge of the hazards and dangers attendant to going with that
unit.  Despite his undoubted meritorious service to captured American
personnel, the Department did not favor private legislation to extend the
benefits of the Missing Persons Act to him and that to do so would set a
precedent for extending coverage to other persons employed under similar
circumstances in Korea.

18.  In June 1975, in response to a congressional inquiry on behalf of the
applicant, the Office of the Secretary of the Army informed the
Congressional representative that the applicant worked for the Army as a
Third Country National from 13 May to 10 July 1950, that he was paid
approximately $18.00 in retirement benefits and that his employment
terminated on 10 July 1950.  He was a Third Country National working for
the United States at the time of his capture and the law did not provide
for such compensation to civilians working for the Army who are
subsequently captured while in an employed status.

19.  In May 1991, officials at the Army Reserve Personnel Center in St.
Louis, Missouri responded to another Congressional inquiry, to the effect,
that the applicant was employed by funds raised by the members of the unit
and did not qualify for status under either appropriated or non-
appropriated funds.  While the applicant volunteered to accompany the unit
to a combat zone (presumably with full knowledge of the hazards involved),
he was, at the time, a Japanese citizen who was illegally in Korea.  His
presence was unauthorized, despite the fact that a representative of the
United States presumably, and without authority, authorized his presence.
His presence conferred no military status and was indicative of poor
judgment exercised by the officers granting such authorization. That agency
opined that the applicant was not entitled to any benefits under the
Missing Persons Act.

20.  On 14 October 2003 the applicant’s last avenue of administrative
relief was returned without action by the Department of Defense
Civilian/Military Service Review Board noting that board only considered
applications from a group of civilian employees or contract workers and not
individual applicants.
21.  Although the applicant’s records contain numerous statements from
members who were held prisoner with the applicant and which document his
courage and dedication to the welfare of his fellow prisoners, the most
significant statement was authored by the company commander at the time,
who was a first lieutenant.  He indicated in his statement that he arrived
in Japan on 18 June 1950, and was unaware of the status of the Japanese
civilians until the first sergeant asked him, while they were preparing for
deployment to Korea, “What about the civilian KP’s?”  Not knowing the
answer, he went to battalion headquarters and was told by a Captain Green
that “this thing” will be over within a week so “Take them along.”  He goes
on to state that the KP’s were allowed to accompany the unit and that the
unit ceased to be an operational unit after 14 July 1950.  He also states
that at no time was he ever informed that the Japanese civilians had been
terminated from employment.

22.  Title 50, United States Code Appendix, Section 454 (a) provides that
“no person shall be inducted into the Armed Forces for training and
service…until his acceptability in all respects, including his physical and
mental fitness, has been satisfactorily determined under standards
prescribed by the Secretary of Defense.”

23.  The Missing Persons Act was originally enacted to provide continuing
payment of pay and allowances to members of the United States Armed Forces
and certain Federal civilian employees who were officially reported to be
missing in action, captured by the enemy, or interned in a neutral country.
 The act was a response to unprecedented personnel problems experienced by
the Armed Forces in the early months after the United States entry into the
Second World War.  Originally proposed by the Navy Department, the
legislation was amended on the floor of the House to cover the other
services.  The primary purpose of the legislation was to alleviate
financial hardship suffered by the dependents of service members reported
as missing.  Originally enacted in 1942 (56 Stat. 143) as temporary
legislation the act was amended and re-enacted several times.  It is
currently codified at Title 37 United States Code, Chapter 10 and Title 5
United States Code, Chapter 55, subchapter VII.

24.  The Board’s authority is derived from Congress when it passed the
Legislative Reorganization Act of 1946 (since codified as section 1552 of
title 10 of the Unites States Code).  The scope of the Board’s authority
came into question very shortly after its creation.  In 1951, this Board
upgraded a discharge adjudged by a 1919 court-martial, and in supplemental
proceedings further


corrected the applicant’s records to show that, with an honorable
discharge, he had made timely application for certain World War I veterans
benefits.  The Attorney General of the United States was asked to comment
on the propriety of what was seen as a retroactive creation of a record.
His response included the following which seems pertinent to this case:

      It has been suggested that the relief provided is without your power
      because it involves the creation, rather than the correction of a
      record.  This suggestion seems to me to be without substantial force.
      The Act does not define the term “correct” but it would be plainly
      inconsistent with its purpose to give it a narrow or technical
      meaning.  Further, in certain sense the correction of any record
      involves the creation of a new one.  However, there is no indication
      the Congress intended that fact to bar an otherwise appropriate remedy
      (41 Ops. Att’y Gen. 208).

25.  Title 31, United States Code, section 3702 prohibits the payment of a
claim against the Government unless the Comptroller General has received
the claim within 6 years after the claim accrues.  Among the important
public policy considerations behind statutes of limitations, including the
6-year limitation for filing claims contained in this section of Title 31,
United States Code, is relieving the government of the need to retain,
access, and review old records for the purpose of settling stale claims,
which are often difficult to prove or disprove.

26.  Army Regulation 600-8-22 provides the criteria for the award of the
Prisoner of War (POW) Medal.  It provides, in pertinent part, that the POW
Medal is authorized by Public Law 99-145, section 1128, title 10, United
States Code, 8 November 1985.  It is authorized for any person who, while
serving in any capacity with the United States (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 and other personnel granted
creditable U.S. military service, who were held captive while engaged in an
action against an enemy of the U.S. or while engaged in military operations
involving conflict with an opposing foreign force.  U.S. and foreign
civilians who have been credited with U.S. military service, which
encompasses the period of captivity, are also eligible for the medal.

27.  Army Regulation 600-8-22 also provides, in pertinent part, that the
Korean Service medal (KSM) is a United Nations Service Medal (UNSM) that is
awarded for service in Korea, or its adjacent territorial waters, during
the period 27 June 1950 to 27 July 1954.  The service must have been
performed while on permanent assignment, or on temporary assignment for 30
consecutive days, or in active combat against the enemy.  The award of the
KSM is sufficient to award the United Nations Service Medal (UNSM) as well.

28.  Department of the Army Pamphlet 672-1 shows that the 63rd Field
Artillery Battalion was awarded the Distinguished Unit Citation (now known
as the Presidential Unit Citation) (PUC) for the period of 2 July to 15
September 1950 in General Order #45, published in 1950.

DISCUSSION AND CONCLUSIONS:

1.  The Department of the Army has continued to acknowledge that although
the applicant was improperly armed, given uniforms and was transported to
Korea without proper authorization, he nevertheless had no official
military status and was not entitled to any benefits as a Soldier or a
civilian during the time he was held as a POW with the members of the unit
that he was serving.  As such, no legal error exists in this case.

2.  Notwithstanding the fact that no legal error exists in this case, the
applicant did serve in combat (albeit without a written enlistment contract
or formal training).  He followed orders, wore the uniform, carried the
weapon he was issued, and he endured the hardships of a Soldier.  In doing
so, he not only distinguished himself among the members of his unit who
have tried for 50 years to have his deeds of courage and self-sacrifice
recognized, he was also responsible for saving many of his fellow POW’s
lives, at great personal sacrifice.

3.  While the Board understands that the circumstances are quite unusual,
the documented accounts of the applicant’s actions suggest that his actions
were in keeping with the highest traditions of military service.  There is
no evidence in the well-documented history of this case to suggest that
officials at the time would not have enlisted him on-the-spot if it had
been possible.  He served with distinction as a POW, with a fake rank and
serial number, and for all intents and purposes (as far as the enemy was
concerned), he was an American soldier.

4.  While there may be those who will say that he was never really a
soldier because he did not go through the same training, that he was not
under contract and that he was not subject to the Uniform Code of Military
Justice, the Board disagrees.  He voluntarily deployed to a combat zone
with his unit in an armed and uniformed status, without training on 4 July
1950, was captured with his unit on 14 July 1950 and remained a POW until
he was released on 17 August 1953 (37 months later).  The Board finds that
he served the equivalent of more than a 3-year enlistment, in a POW status,
just as his Soldier counterparts did who had also volunteered for
enlistment or those who were conscripted (inducted) for service.
Additionally, he became an integral part of the unit and its survival as
POWs.  It is also reasonable to presume that if he did not follow orders or
obey the orders of his superiors at the time, the enemy would have
discovered that he was not an American soldier and he could have been
subjected to even more severe punishment than he received by acting as an
American soldier.  It cannot be denied that he served and that he served
well and that the quality of his service far outweighs the fact that he was
not formally enlisted with a contract and the Board would be remiss in
failing to acknowledge his service.

5.  While the applicant did receive support from the Army in having a
private bill passed that would allow him to attain permanent resident alien
status, and later U.S. citizenship, this was only after he had been
inducted into the United States Army, while attending school on a student
visa, was informed that if he declined induction he would be permanently
barred from becoming a citizen of the United States, and then informed that
that if he extended his period of induction to 3 years, he would qualify
for naturalization and U.S. citizenship.  However, after his training, he
was immediately stationed back in Japan, where he was informed that because
his initial entry into the U.S had been on a student visa instead of for
permanent residence, he would not qualify for U.S. citizenship, and would
not be allowed to return to the United States for separation.  While some
may construe the passage of the private bill as payment for his exceptional
conduct and services, while acting as an American soldier in a POW status,
the Board sees it as a combination of righting an injustice that was
imposed on the applicant when he was inducted and ill-advised of the proper
procedures for attaining permanent residence and citizenship, and the fact
that he had distinguished himself during the Korean War.

6.  Although the agencies that have previously declined the applicant’s
requests for relief in this matter did not have the authority to grant
relief, the Board can find no evidence where he was ever advised to apply
to this Board regarding this issue.  Accordingly, the Board finds that the
applicant’s service between 14 July 1950 and 17 August 1953 should be
recognized solely as a matter of equity, justice and compassion.

7.  In acknowledging that service, it would also be appropriate, as an
exception to policy, to correct his records to show entitlement to awards
and decorations he would have received had he been properly enlisted at the
time.  Those awards include the POW Medal for the period of 14 July 1950 to
17 August 1953, the KSM, the UNSM and the PUC.

8.  The Board views every case on an individual basis and finds the
circumstances in this case to be and unique.  The Board also finds that the
relief granted in this case is the right thing to do at this time and will
serve to provide closure to the applicant and the Army as well.

9.  However, because relief in this case is being granted solely as a
matter of equity, justice and compassion, and not to correct an error, the
Board finds in this particular instance that it would be appropriate to
limit pay entitlements to recomputation of the applicant’s retired pay
benefits retroactive to the 6 years preceding the date of the Board’s
action.  In accomplishing this correction the applicant’s 1975 separation
document should be corrected to add an additional
3 years, 1 month, and 4 days of prior active service in item 18(b) (prior
active service) with a notation in item 27 (remarks) that “the period of
service between
14 July 1950 and 17 August 1953 has been added to the individual’s overall
military service as a matter of equity by the Army Board for Correction of
Military Records and that any recomputation of pay entitlements is limited
to the 6 years preceding the Board’s action and any future payments.”

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

BOARD VOTE:

___WP__  ___LB___  __JG____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected:


      a.  by amending the applicant’s 1975 separation document to show an
additional 3 years, 1 months, and 4 days of prior active service in item
18(b) (prior active service);


      b.  by adding a notation in item 27 (remarks) that “the period of
service between 14 July 1950 and 17 August 1953 has been added to the
individual’s overall military service as a matter of equity by the Army
Board for Correction of Military Records and that any recomputation of pay
entitlements is limited to retirement benefits paid for the 6 years
preceding the Board’s action and any future payments;” and


      c.  by showing that the individual concerned is entitled to the POW
Medal for the period of 14 July 1950 to 17 August 1953, the KSM, the UNSM
and the PUC for his service in Korea.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
his request for all associated back pay and recalculation of his retirement
benefits payable earlier than 6 years preceding the Board’s action in this
case.




                                  ____   William Powers_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004103487                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050728                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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