RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 May 2007
	DOCKET NUMBER:  AR20060014066 


	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.


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	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, that he be awarded the Purple Heart (PH).

2.  The applicant states, in effect, that he was a Prisoner of War (POW) and was informed that all POW's were eligible for the PH.  He further states that he is now requesting to be awarded the PH.  

3.  The applicant provides his separation document (WD AGO 53-55) and a copy of his Central Minnesota Chapter American Ex-POW Certificate in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 26 October 1945.  The application submitted in this case is undated; however, was received on 3 October 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 applicant’s failure to timely file.

3.  The applicant’s military records were not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the applicant’s records were lost in that fire.  This case is being considered using reconstructed records, which primarily consist of the applicant’s separation document (WD AGO Form 53-55), War Department Battle Casualty Report, and Report of Physical Examination.

4.  The applicant’s WD AGO Form 53-55 shows he was inducted into the Army of the United States and entered active duty on 24 June 1941.  He continuously served on active duty for 3 years, 7 months, and 29 days until being honorably separated on 26 October 1945.  The separation document also shows he served in the European Theater of Operations (ETO) from 29 October 1944 through 
6 June 1945.  Item 32 (Battles and Campaigns) shows he participated in the Rhineland, Ardennes, and Central Europe campaigns. 
5.  Item 33 (Decorations and Citations) shows that during his active duty tenure, he earned the American Defense Service Medal, Combat Infantryman Badge (CIB), European-African-Middle Eastern (EAME) Campaign Medal with 3 bronze service stars, and Army Good Conduct Medal (AGCM).  

6.  Item 34 (Wounds Received in Action) of the applicant's WD AGO Form 53-55 contains the entry “None”, and the applicant authenticated this document with his signature in Item 56 (Signature of Person Being Separated) on 26 October 1945, the date of his separation.  

7.  The applicant's NPRC file contains a Battle Casualty Report that shows that as of 16 December 1944, the applicant was missing in action (MIA).  It also contains a Report of Physical Examination, which shows the applicant was a POW during the period 19 December 1944 through 19 April 1945.  It further states that the applicant developed diphtheria in March 1945, for which he was hospitalized and that his mental condition was excellent, had no anxiety, depression, apathy or concern over health.  

8.  The applicant’s record contains a copy of DA Forms 1577, dated 27 May 1988 and 14 March 1991, issued by the Department of the Army (DA), Army Reserve Personnel Center (ARPERCEN), St. Louis, Missouri.  These documents show that he was issued the following awards that had not been previously entered on his WD AGO Form 53-55: POW Medal; Bronze Star Medal (BSM); World War II Victory Medal; American Campaign Medal (ACM); and Army of Occupation Medal (AOM) with Germany Clasp.  A note contained on the 
DA Form 1577 stated that the BSM had been issued based on the applicant’s receipt of the CIB.  

9.  During World War II and the Korean War the PH 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.  
10.  Executive Order 11016, dated 25 April 1962, provided more latitude with respect to award of the PH to POW's, 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 POWs 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 PH to any former POW who was wounded before 25 April 1962, while held as a POW, or while being taken captive, in the same manner as a former POW who was wounded on or after that date.  Award of the PH was not automatic for former POWs, the regulatory criteria for award of the PH remained the same for members in this category, and proof that they were wounded in action while being taken as a POW or while being held captive was still required to support the award of the PH.  

11.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to award a PH there must be evidence that a member was wounded or injured as a result of enemy action.  The wound or injury for which the PH is being awarded must have required treatment by a medical officer; this treatment must be supported by medical treatment records that were made a matter of official record. 

12.  Paragraph 2-9 of the awards regulation contains guidance on award of the POW Medal.  The POW Medal is authorized for any person who was taken prisoner and held captive after 5 April 1917.   

13.  Paragraph 3-13 of the awards regulation contains guidance on the Bronze Star Medal (BSM).  Paragraph 3-13d (2) states, in effect, that the BSM is authorized to members of the Armed Forces of the United States who, after
6 December 1941, were cited in orders or awarded a certificate for exemplary conduct in ground combat against an armed enemy between 7 December 1941 and 2 September 1945.  This paragraph also stipulates that for this purpose, an award of the CIB is considered as a citation in orders.  

14.  Paragraph 5-11 of the same regulation contains the policy for awarding the Army of Occupation Medal.  It states, in pertinent part, that it is awarded for service for 30 consecutive days in Germany between 9 May 1945 and 5 May 1955.  It stipulates that service between 9 May and 8 November 1945 will be counted only if the European-African- Middle Eastern Campaign Medal was awarded for service before 9 May 1945. 

15.  Paragraph 5-12 contains guidance on the World War II Victory Medal.  It states, in pertinent part, that it was awarded for service between 7 December 1941 and 31 December 1946, both dates inclusive.   

16.  Paragraph 5-15 of the awards regulation contains the policy for awarding the American Campaign Medal.  It states, in pertinent part, that it is awarded to individuals who served an aggregate period of 1 year within the continental limits of the United States between 7 December 1941 and 2 March 1946.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to award of the PH based on being a POW was carefully considered.  However, there are no regulatory provisions for granting award of the PH solely based on being a POW.  By regulation, in order to support award of the PH, there must be evidence confirming that the wound for which the award is being made was received as a direct result of, or was caused by enemy action, that the wound was treated by military medical personnel, and a record of this medical treatment must have been made a matter of official record.  

2.  The available evidence includes the applicant's WD AGO Form 53-55, which contains the entry "None" in Item 34.  This indicates he was never wounded in action.  The PH is not included in the list of awards contained in Item 33, and the applicant authenticated this document with his signature on the date of his separation from active duty.  In effect, his signature was his verification that the information contained on the separation document, to include the Item 33 and Item 34 entries, was correct at the time the document was prepared and issued. 

3.  The veracity of the applicant’s claim of entitlement to the PH is not in question.  However, absent any evidence (medical treatment records, 
eye-witness statements, or record entries) showing that he was wounded in action while being taken as a POW or while held captive, or that he was ever treated for a combat-related wound or injury by military medical personnel while serving on active duty, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case. 

4.  Records show the applicant should have discovered the alleged error or injustice related to award of the PH now under consideration on 26 October 1945, the date of his separation from active duty.  Therefore, based on the date the Board was established 2 January 1947, the time for him to file a request for correction of any error or injustice expired on 1 January 1950.  He failed to 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.  The evidence does show that the applicant is entitled to the BSM, POW Medal, World War II Victory Medal, American Campaign Medal, and the Army of Occupation Medal with Germany Clasp.  The omission of these awards from his separation document is an administrative matter that does not require Board action.  Therefore, the Case Management Support Division (CMSD), St. Louis, Missouri, will correct his records as outlined in paragraph 3 of the BOARD DETERMINATION/RECOMMENDATION section below.

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.

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 his entitlement to the Prisoner of War Medal, Bronze Star Medal, World War II Victory Medal, American Campaign Medal, and the Army of Occupation Medal with Germany Clasp.



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          CHAIRPERSON
INDEX

CASE ID
AR200560014066
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/05/08
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1945/10/26
DISCHARGE AUTHORITY
AR615-365 . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
107 (PH)
2.

3.

4.

5.

6.