RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  16 AUGUST 2005
	DOCKET NUMBER:  AR20050001237 


	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. Melvin Meyer

Chairperson

Mr. John Meixell

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 award of the Purple Heart.

2.  The applicant states he was never awarded the Purple Heart for injuries he incurred while a POW (Prisoner of War) between July 1950 and September 1953.

3.  The applicant provides a 1997 statement from an individual who states he was a POW with the applicant and witnessed his being beaten from behind with a rifle by a guard, an undated statement from a physician who states that x-rays revealed one kidney larger than the other, and a 1992 radiology report which showed “left renal scarring with may represent an old area of infarction.”

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 30 November 1965.  The application submitted in this case is dated
6 January 2005.

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.  Records available to the Board indicate that the applicant was a field artillery officer who was assigned to a field artillery battalion in Korea in June 1950.  He was reported as missing in action on 14 July 1950 and subsequently classified as a POW.  He was returned to military control on 4 September 1953 and returned to the United States.

4.  There were no service medical records available to the Board, or provided by the applicant.  A performance evaluation report for the period 14 July 1950 through 28 February 1954 notes that the applicant was a POW in Korea for 37 months and that he was “quiet and unassuming, well mannered, has a good sense of humor, is loyal to his superiors and neat in appearance.”  The report makes no mention of any wounds or injuries incurred while a POW.

5.  The applicant continued to serve in an active duty status until 30 November 1965 when he was retired for length of service.

6.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, 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 by a medical officer, and the medical treatment must have been made a matter of official record.

7.  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 of war, or while being taken captive, in the same manner as a former prisoner of war who was wounded on or after that date.
8.  The 1997 statement, submitted by an individual who states he was a POW with the applicant indicates that the author of the statement recalled going “to the latrine outside” where he saw the applicant “being yelled at by a guard and when [the applicant] said something back to [the] guard, he (the guard) went behind [the applicant] and started beating on the back of [the applicant] with his rifle.”

9.  The undated statement from the physician indicates that the applicant was x-rayed for kidney problems and that the applicant reported being beaten while in a POW camp in Korea between 1950 and 1953.  The physician stated that it was his opinion that the difference in size of the applicant’s kidney was related to the beating.

10.  The 1992 radiology report confirmed that the applicant’s left kidney measured 12.5 centimeters and the right kidney measured 10.8 centimeters.  It also noted “left renal scarring which may represent an old area of infarction” and that “no other abnormalities of the kidneys are noted.”

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

DISCUSSION AND CONCLUSIONS:

1.  Unfortunately, in the absence of more compelling medical evidence, particularly from the applicant’s service medical records, the 1992 radiology report, the undated statement from the physician, and the 1997 statement from the other POW are not sufficient to confirm that the applicant meets the requirements for award of the Purple Heart.  

2.  It would have been reasonable to expect that had the applicant been wounded or injured as a result of enemy action while he was a POW a record of that wound or injury would have been included as part of his service medical records, and in particular in medical evaluations which would have been conducted upon his repatriation.  

3.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 November 1965; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
29 November 1968.  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.

5.  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 FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___MM__  ___JM  __  __JG ___  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 Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show entitlement to the POW Medal.




______Melvin Meyer________
          CHAIRPERSON




INDEX

CASE ID
AR20040001237
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20050816
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.