RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 August 2006
      DOCKET NUMBER:  AR20050017460


      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. John J. Wendland, Jr.         |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Dean A. Camarella             |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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, in effect, correction of his military records
to show his prisoner of war status, award of the Prisoner of War Medal, and
Purple Heart.

2.  The applicant states, in effect, that he finally found a former fellow
Soldier who was with him on 30 April 1943 who can attest to the applicant
being captured by the enemy at Hill 523 during World War II.  The applicant
also states that the Department of Veterans Affairs (VA) made a decision on
his service-connected disabilities, which verified the applicant's
statement that he sustained a shrapnel wound to the neck during combat.

3.  The applicant provides a copy of his WD AGO Form 53-55 (Enlisted Record
and Report of Separation - Honorable Discharge), with an effective date of
13 July 1945; National Personnel Records Center, Military Personnel
Records, St. Louis, Missouri, letter, dated 29 November 2002, subject:
Response to [Applicant's Name] Award Request; VA Form 21-4138 (Statement in
Support of Claim), dated 17 January 2005; 2 pages of Department of VA, St.
Petersburg Regional Office, St. Petersburg, Florida, letter, undated, in
reply to the applicant's VA claim; a 5-page unsigned letter from Captain
E____ W. E____, Battalion S-3, 16th Infantry, dated 21 May 1943, subject:
Prisoner of War [Indistinguishable]; letter from Mr. L____ M_____ C____,
dated 12 November 2004, subject:  Hill #523 - Prisoner of War; and a letter
from the applicant's wife, Mrs. Linda L. S_______, dated 7 October 2006
(sic), to Congresswoman G____ B____-W____.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 13 July 1945, the date of his discharge from the Army.  The
application submitted in this case is dated 12 November 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.  Available military service records show that the applicant entered
active duty in the U.S. Army on 24 August 1940 and was awarded military
occupational specialty (MOS) 542 (Wire Sergeant).  He was assigned to
Company C,
16th Infantry Regiment, and served in the European Theater of Operations
from
7 August 1942 to 21 April 1945.  The applicant was honorably discharged on
13 July 1945 after serving a total of 4 years, 10 months, and 20 days.

4.  The applicant's military service records are not available and were
most likely lost or destroyed in the fire that occurred at the National
Personnel Records Center (NPRC) on 12 July 1973.  However, the applicant's
records contain a copy of WD AGO Form 38 (Report of Physical Examination of
Enlisted Personnel Prior to Discharge, Release from Active Duty or
Retirement), dated 13 July 1945. This document shows the entry "NO" in Item
10 (At the present time do you have any wound, injury or disease which is
disabling?  If answer is yes, list those conditions first under Item 11).
This document also shows Item 11 (List all significant diseases, wounds,
and injuries.  State circumstances under which wounds or injuries were
incurred and date of onset.  Answer yes or no in Columns 1 to 4.) contains
the entry "NO MALARIA OR SYPHILIS" and there are no entries in Columns 1,
2, 3, or 4.

5.  The applicant's records contain a copy of his WD AGO Form 53-55
(Enlisted Record and Report of Separation - Honorable Discharge), with an
effective date of 13 July 1945, as corrected by DD Form 215 (Correction to
DD Form 214, Certificate of Release or Discharge from Active Duty), dated 4
December 2002.  Item 31 (Military Qualifications and Date (i.e., infantry,
aviation and marksmanship badges, etc.)) of the applicant's discharge
document shows that he was awarded the Combat Infantryman Badge and
Marksman Marksmanship Qualification Badge with Rifle Bar.  Item 33
(Decorations and Citations) shows that he was awarded the American Defense
Service Medal, Presidential Unit Citation with 2 Oak Leaf Clusters,
European-African-Middle Eastern Service Medal, Good Conduct Medal, Silver
Star, World War II Victory Medal, Army of Occupation Medal with Germany
Clasp, American Campaign Medal, and Bronze Star Medal.  Item 34 (Wounds
Received in Action) of the applicant's WD AGO Form 53-55 contains the entry
"None" and Item 55 (Remarks) contains the entry "Lapel Button Issued."
Item 56 (Signature of Person Being Separated) shows that the applicant
affixed his signature to the document in this item.

6.  There is no documentary evidence in the applicant's military service
records which shows he was a prisoner of war during World War II.  There is
no documentary evidence to show the applicant was wounded as a result of
hostile action, while being taken captive, or while held as a prisoner of
war.  In addition, there are no medical records which show that the
applicant was treated for a wound that was sustained as a result of hostile
action, while being taken captive, or while held as a prisoner of war.

7.  The applicant's military service records show that, based on a request
from the applicant in 1996, officials at the NPRC, Military Personnel
Records,
St. Louis, Missouri, were able to verify the applicant's assignment to the
1st Battalion, 16th Infantry Regiment, but were unable to verify his
prisoner of war status through files and historical data (i.e., unit
morning reports) retained by the Department of the Army.

8.  In support of his application, the applicant provides a copy of his VA
Form
21-4138 (Statement in Support of Claim), dated 17 January 2005, in which he
states that he was captured on 30 April 1943 and released on 9 May 1943.
During his capture he states he had shrapnel removed from his neck by a
fellow Soldier named A________ and briefly describes events that occurred
while he was captured.  He adds "[t]he reason I did not bring it up at
discharge was I thought I was lucky to have lived and just wanted to go
home and also was afraid that you [the U.S. Army] would keep me longer."
The 2 pages the applicant provides from the Department of VA in reply to
his VA claim show, in pertinent part, that based upon the applicant's
discharge document the VA determined, "…you received the Bronze Star medal,
therefore your statement that you received this shrapnel wound to the neck
during combat is considered verified."  The 5-page letter from the
Battalion S-3, 16th Infantry, dated 21 May 1943, to the commanding officer
of the 16th Infantry Regiment offers details of the capture and confinement
of 11 officers and 139 enlisted men of the 16th Infantry Regiment by German
troops during the period 30 April 1943 through 9 May 1943. This document
offers the names of 5 officers; however, it does not provide the names of
any of the 139 enlisted men who were taken prisoner.  The letter from a
former fellow Soldier, dated 12 November 2004, in pertinent part, attests
to the fact that the applicant was captured on Hill # 523.  The letter from
the applicant's wife, dated 7 October 2006 (sic), draws from the
documentation provided in support of this application and requests the
assistance of the Representative in Congress on behalf of the applicant.

9.  Army Regulation 635-5 (Separation Documents) establishes the
standardized policy for preparing and distributing discharge documents.  In
pertinent part, it directs that, in the case of prisoners of war, the unit
of assignment, country, and dates of capture and release will be entered in
the “Remarks” section of the discharge document.


10.  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.

11.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple
Heart is awarded for a wound sustained as a result of hostile action.  Army
Regulation 600-45 (Decorations), which governed the award of Army
decorations until
23 August 1951, stated that for the purpose of considering an award of the
Purple Heart, a “wound” is defined as an injury to any part of the body
from an outside force, element, or agent sustained while in action in the
face of the armed enemy or as a result of a hostile act of such enemy.  The
Army regulation further states that 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.

12.  Section 521a of the National Defense Authorization Act of 1996,
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.  Section 521b specifically stated that award
of the Purple Heart for prisoners of war under Section 521a shall be made
in accordance with the standards in effect on the date of the enactment of
this Act to persons wounded on or after 25 April 1962.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he sustained a shrapnel wound to the neck in
combat during World War II on 30 April 1943, was taken prisoner by German
troops, and held captive until 9 May 1943.  As a result, he contends that
his military service records should be corrected to show his prisoner of
war status, award of the Prisoner of War Medal, and the Purple Heart.

2.  The Board notes that in 2005 the VA verified the applicant's statement
that he received a shrapnel wound to his neck during combat.  This
verification was based on award of the Bronze Star Medal made by the U.S.
Army in 2002, which was awarded to the applicant for having been cited in
orders for award of the Combat Infantryman Badge for exemplary conduct in
ground combat against an armed enemy during World War II.  However, the
Board also notes that, at the time of the applicant's physical examination
on the day of his discharge, the applicant failed to indicate that he had
ever been wounded during his military service.  In addition, it is
particularly noteworthy that the applicant failed to ensure that his
prisoner of war status was documented in his military service records at
the time of his discharge.

3.  The evidence of record indicates that 11 officers and 139 enlisted men
of the 16th Infantry Regiment were taken prisoner by the enemy on 30 April
1943 and were held captive until 9 May 1943.  The evidence of record also
shows that a former Soldier now attests to the fact that the applicant was
captured.  However, the evidence of official military records fails to show
the applicant's status as a prisoner of war, either in his military service
records or in available unit morning reports.  Based on the foregoing,
there is insufficient documentary evidence to show the applicant was held
as a prisoner of war from 30 April 1943 to 9 May 1943.  Therefore, the
applicant is not entitled to correction of his military service records to
show he was a prisoner of war during World War II.  Consequently, he is not
entitled to award of the Prisoner of War Medal.

4.  There is no evidence of record that shows the applicant was awarded the
Purple Heart and the applicant provides insufficient evidence to support
award of the Purple Heart.  There is insufficient evidence to verify that
the applicant was wounded as the result of hostile action.  There is no
documentary evidence to show the applicant was wounded while being taken
captive or while held as a prisoner of war.  In addition, there are no
medical records which show that the applicant was treated for a wound that
was sustained as a result of hostile action, while being taken captive, or
while held as a prisoner of war.  Therefore, the applicant is not entitled
to award of the Purple Heart.

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

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 July 1945; the date of his
discharge from the Army.  The ABCMR was not established until 2 January
1947.  Therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 1 January 1950.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RTD___  __DAC__  __RMN__  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.




                                       _Richard T. Dunbar___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017460                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/08/17                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19450713                                |
|DISCHARGE AUTHORITY     |AR 615-365, RR 1-1 (Demobilization)     |
|DISCHARGE REASON        |Convenience of the Government           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |107.0015.0000                           |
|2.                      |107.0029.0000                           |
|3.                      |130.0000.0000                           |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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