IN THE CASE OF:	  

		BOARD DATE:	  24 September 2008

		DOCKET NUMBER:  AR20080006952 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge) be corrected to show that he was a prisoner of war (POW) for approximately 47 days, and that he be awarded the POW Medal. 

2.  The applicant essentially states that he was captured by German forces in North Africa in the spring of 1943 while serving with the 22nd Infantry Regiment, 4th Armored Division.  He also essentially states in his supporting documentation that he was a POW a second time when he was captured by the Germans in Palermo, Italy in 1943; however, no annotation of his former POW status was made on his WD AGO Form 53-55.

3.  The applicant provides his WD AGO Form 53-55; a Certification of Military Service, dated 5 November 1986; page 7 of 11 of a VA Form 21-526 (Veteran's Application for Compensation or Pension); a VA Form 21-4138 (Statement in Support of Claim), dated 8 October 2001; a two-page story dictated by the applicant as he remembers it; an undated DD Form 2510 (Prisoner of War [POW] Medal Application/Information); the front page of a Department of Veterans Affairs (DVA) Rating Decision, dated 3 October 2002; a three-page DVA Rating Decision, dated 3 March 2004; a copy of a DVA identification card which essentially shows that the DVA categorized the applicant as a service-connected, former POW veteran; a letter, dated 11 April 2008, from a third-party 
member of the Veterans of Foreign Wars to a Member of Congress; a letter, 
dated 15 April 2008, from a Member of Congress to the Army Review Boards Agency; and a letter, dated 27 March 2008, from the National Personnel Records Center to a Member of Congress in support of this application.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The majority of the applicant’s military records are not available for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the majority of the applicant's records were lost or destroyed in that fire.  However, there are sufficient remaining documents available to conduct a fair and impartial review of this case.

3.  The applicant's WD AGO Form 53-55 shows that he was inducted into the Army of the United States on 29 July 1942, and entered active duty on 12 August 1942.  This document also shows that he was awarded military occupational specialty 345 (Truck Driver).  He departed the continental United States on 
29 April 1943 for North Africa, and arrived there on 11 May 1943.  He departed North Africa on 15 August 1944, and arrived in Italy on 23 August 1944.  He departed Italy on 27 September 1944 and arrived in France on 29 September 1944.  He departed France on 19 July 1945 and arrived in Holland on the same day.  He departed Holland on 29 November 1945 and arrived in Belgium on
the same day.  On 3 December 1945, he was honorably discharged in Belgium to accept employment overseas.  His WD AGO Form 53-55 essentially shows that he was awarded the Good Conduct Medal, the European-African-Middle Eastern Campaign Medal with one bronze service star, the Motor Vehicle Driver and Mechanic Award [subsequently renamed the Driver and Mechanic Badge with Driver-W Bar], and the Marksman Marksmanship Qualification Badge with Rifle Bar.


4.  The applicant essentially requested that he be awarded the POW Medal, and that his WD AGO Form 53-55 be corrected to show that he was a POW for approximately 47 days in North Africa in 1943, and was a POW again in Palermo, Italy in 1943.  However, the available military records do not provide any evidence that the applicant was ever taken prisoner or held captive, and there is no record of a repatriation physical in his military records.  The applicant also authenticated his WD AGO Form 53-55 with his thumbprint and signature, attesting to the accuracy of the information contained on this document, which does not show that he was ever a POW.  Additionally, although a search of the National Archives and Records Administration World War II Prisoners of War Data File, which documents 143,374 records of United States military officers and Soldiers and United States and some Allied civilian personnel who were prisoners of war and internees from 7 December 1941 to 19 November 1946, contained eight entries for people with the same last name of the applicant, none of these entries pertained to the applicant.

5.  The applicant essentially stated that he was captured by German forces in North Africa in the spring of 1943 while serving with the 22nd Infantry Regiment, 4th Armored Division.  He also essentially stated in his supporting documentation that he was a POW a second time when he was captured by the Germans in Palermo, Italy in 1943; however, no annotation of his former POW status was made on his WD AGO Form 53-55.

6.  The applicant provided page 7 of 11 of a VA Form 21-526 and a VA Form 
21-4138, dated 8 October 2001, in which he essentially indicated that he was a POW in Algeria, North Africa in 1943, and also a POW in [Palermo], Italy in 1943. He also provided a two-page story dictated by him as he remembers it, in which he essentially stated that he was captured by German forces and was mentally tortured for 47 days until American forces came across the cave he was kept in and used a flame thrower to get the Germans to come out.  

7.  The applicant also provided portions of two DVA Rating Decisions, dated 
3 October 2002 and 3 March 2004, which essentially stated that his status as an ex-POW had been verified, and that he underwent a POW protocol examination on 4 September 2002.  He also provided a copy of a DVA identification card which shows the DVA categorized him as a service-connected, former POW veteran.

8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the POW Medal was authorized on 8 November 1985 and is awarded to individuals who, while serving in any capacity with the U.S. Armed Forces, were taken prisoner and held captive after 5 April 1917.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his WD AGO Form 53-55 should be corrected to show that he was a POW for approximately 47 days, and that he should be awarded the POW Medal. 

2.  The evidence provided by the applicant was carefully considered.  However, 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.

3.  It appears that the DVA, after the applicant underwent a POW protocol examination on 4 September 2002, made a presumptive determination that the applicant was a POW during World War II.  While the DVA, in its own discretion, has the authority to implement a presumptive decision-making process for veterans, the regulation governing the ABCMR states that it will begin its consideration of each case with the presumption of administrative regularity.  Based upon the evidence of record, which included a WD AGO Form 53-55 that was authenticated by the applicant at the time of his discharge which does not show that he was a POW in World War II, and the fact that there is no entry for the applicant in the National Archives and Records Administration World 
War II Prisoners of War Data File, the fact that the DVA determined that the applicant was a POW in World War II does not prove, by itself or by a preponderance of the evidence, that he in fact was a POW in World War II.  

4.  The fact that the applicant stated in his supporting documentation that he was a POW a second time when he was captured by the Germans in Palermo, Italy in 1943 is also contradicted by the evidence of record, which clearly shows that the applicant did not even arrive in Italy until 23 August 1944.

5.  The sincerity of the applicant's claim that he was a POW during World War II is not questioned.  However, absent evidence which conclusively proves, by a preponderance of the evidence, that he was taken prisoner and held captive while he was serving on active duty in the Armed Forces during World War II, 
regrettably, there is insufficient basis to correct his WD AGO Form 53-55 to show that he was a POW, and an insufficient basis upon which to award him the POW Medal.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during World War II.  The applicant and all Americans should be justifiably proud of his service in arms.



      __________X____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080006952



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ABCMR Record of Proceedings (cont)                                         AR20080006952



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