RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: March 8, 2007
DOCKET NUMBER: AR20060012941
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.
x
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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his Prisoner of War (POW) status.
2. The applicant states that he was a POW and it is not recorded on his DD Form 214.
3. The applicant provides a letter from the Department of Veterans Affairs (DVA), Chicago, Illinois, dated 11 August 2006 and his DD Form 214.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error or injustice which occurred on 30 March 1970. The application submitted in this case is dated 17 August 2006.
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 applicants failure to timely file.
3. The applicant was inducted into the Army on 27 May 1968. He completed basic combat training and advanced individual training. He was assigned to Korea on 25 November 1968 as a helicopter repairman.
4. A Report of Casualty, dated 17 August 1969, indicated the applicant was reported missing on 17 August 1969 in Korea. The report indicated he was last seen while aboard a military aircraft on a training flight when contact with the aircraft was lost. There was a possibility that the aircraft may have inadvertently strayed into North Korean territory. He sustained a gunshot wound to his right leg as a result of this incident.
5. A Report of Casualty, dated 30 September 1969, indicated the applicants unarmed aircraft accidentally overflew North Korean territory, was hit by ground fire from North Korea, and went down in North Korean territory.
6. A Report of Casualty, dated 10 December 1969, shows the applicant was released by the North Korean authorities and returned to military control on 3 December 1969.
7. The applicant was released from active duty on 30 March 1970 and was placed on the temporary disability retired list.
8. A letter, dated 11 August 2006, from the DVA in Chicago, Illinois informed the applicant that he was listed as being a former POW for the period 17 August 1969 to 3 December 1969.
9. Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214. It states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge. The version, in effect at the time, did not provide guidance for POW status to be reflected on the DD Form 214.
10. Title 50, United States Code (USC), section 2005 defines prisoner of war as any regularly appointed, enrolled, enlisted, or inducted member of the military or naval forces of the United States who was held as a POW for any period of time subsequent to December 7, 1941, by any government of any nation with which the United States has been at war subsequent to such date.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant was captured and held by North Koreans from 17 August 1969 through 3 December 1969.
2. The applicants request to add his POW status to his DD Form 214 is noted. However, Army Regulation 635-5, in effect at that time, did not provide for entry of POW status on the DD Form 214. Regrettably, there is no basis for granting the applicants request.
3. Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 March 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 29 March 1973. 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
x_____ x______ x_____ 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.
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CHAIRPERSON
INDEX
CASE ID
AR20060012941
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
20070308
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES 1.
100.0000
2.
3.
4.
5.
6.
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