IN THE CASE OF:	  

		BOARD DATE:	        24 July 2008

		DOCKET NUMBER:  AR20080010053 


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 award of the Prisoner of War (POW) Medal.

2.  The applicant states that he was held by German soldiers in December 1944.

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  Self-authored letter (Facts) and a sketch-map of Operation Undertone, dated 15 March 1945.

	b.  Various statements from the applicant's friends and comrade-in-arms, dated on miscellaneous dates.

	c.  WD AGO Form 53-55 (Enlisted Record and Report of Separation), dated 13 January 1946.

	d.  WD AGO Form 100 (Separation Qualification Record), dated 13 January 1946.

	e.  Headquarters, 103rd Infantry Division General Orders Number 159, dated 1 June 1945, awarding the applicant the Bronze Star Medal.

	f.  Certificate, dated 27 February 1979, awarding the applicant the Bronze Star Medal.

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

3.  The applicant's WD AGO Form 53-55 shows he was inducted into the Army of the United States on 16 June 1943 and entered active duty on 30 June 1943 in Providence, Rhode Island.  He was trained in military occupational specialty (MOS) 745 (Rifleman). 

4.  The applicant's WD AGO Form 53-55 shows he served in the European-African-Middle Eastern (EAME) Theater during the period 20 October 1944 through 13 July 1945.  He was assigned to Company E, 2nd Battalion, 411th Infantry Regiment.  

5.  The applicant's WD AGO Form 53-55 shows he completed 1 year, 10 months, and 29 days of continental service, and 9 months and 15 days of foreign service. He was honorably discharged on 13 January 1946.

6.  Item 31 (Battles and Campaigns) of the applicant’s WD AGO Form 53-55 shows he participated in the Rhineland, Ardennes, and Central Europe campaigns during World War II (WW II).




7.  Item 33 (Decorations and Citations) of the applicant's WD AGO Form 53-55,  and Item 5 (Original WD AGO Form 53-55 is Corrected as Indicated Below:) of the applicant's DD Form 215 (Correction to DD Form 214), dated 12 August 2005, show the applicant was awarded the European-African-Middle Eastern Campaign Medal with three bronze service stars, the Good Conduct Medal, the American Campaign Medal, the World War II Victory Medal, the Bronze Star Medal (1st Oak Leaf Cluster) and "V" Device, and the Army of Occupation Medal with Germany Clasp.  Item 33 and Item 5 do not show award of the POW Medal.

8.  Item 55 (Remarks) of the applicant's WD AGO Form 53-55 does not indicate that the applicant was in a POW status during his military career.

9.  The applicant submitted a self-authored statement as well as other statements as follows:

	a.  in his self-authored statement, the applicant states that on 10 December 1944, his patrol emerged from a wooded area outside Griesbach, France, in enemy territory, and spotted three enemy soldiers across a field.  His commanding officer ordered him to drop his weapon, approach the enemy unarmed, and demand they surrender.  However, the enemy had no intention to surrender and instead, they took him (the applicant) as a prisoner.  He attempted to negotiate his way out for an hour or more, but the enemy grew agitated and when an enemy soldier grabbed him, he resisted, broke free, and dove behind a fallen tree.  The enemy fired at him, but missed him, which sparked a fire fight that lasted throughout the night, while he was trapped on the battlefield for the duration, until he was rescued by his comrades;

	b.  in an undated statement, a witness states that on 10 December 1944, a fire-fight erupted between the enemy and members of Company E, 411th Infantry, one mile south of Woerth-Alsace, France.  U.S. Soldiers chased the enemy into town where the applicant demanded the enemy's surrender, but the enemy refused.  Exchange of fire continued throughout the night until the enemy moved out of the town;

	c.  in another statement by the applicant, dated 11 November 2007, he states that on or about 11 December 1944, he was taken prisoner by enemy soldiers near the town of Griesbach, France, after a "botched" surrender of the enemy.  He was rescued after 10 hours by a detachment of the 411th Infantry Regiment;




	d.  in another witness statement, dated 12 January 2005, he ordered the applicant to eliminate enemy machine gun fire from an emplacement near the city of Woerth-Alsace, France on 11 December 1944.  The applicant moved to the side entrance of a courtyard in an attempt to locate the enemy machine gun and in the process, killed one enemy soldier, and forced another to surrender; and

	e.  in another statement, dated 13 September 1991, a witness states that on the night of 11 December 1944, the commanding officer believed the enemy wanted to surrender and ordered the applicant to go out and accept their surrender.  The applicant, unarmed, was met with three armed enemy soldiers who thought he was going to surrender and ended up firing their weapons at him and pinning him down.  Several hours later, the applicant was able to separate himself from the enemy and started running.  He was subsequently rescued by a friendly detachment. 

10.  The applicant was awarded the Bronze Star Medal for Heroism in action on 11 December 1944.  The Bronze star Medal Certificate, issued on 27 February 1979, cited the following reason:

On 11 December 1944, in a village near Woerth, France, [Applicant] moved to the side entrance of a courtyard adjoining a house while a comrade covered the rear entrance in an attempt to locate an enemy machine gun emplacement.  Observing two enemy soldiers dash across the street and hide behind a house,  [Applicant] attempted to run across the courtyard only to be forced to take cover from hostile machine gun fire.  He then crawled the remainder of the distance to the house and, discovering the enemy about to shoot his comrade, fired his weapon, killing one of the enemy and forcing the other to surrender.  

11.  During the processing of this case, a member of the Board staff contacted a technician at the Special Actions Branch-Veterans, Human Resources Command, St. Louis, Missouri.  On 11 July 2008, the technician stated that no action was taken on the applicant's request because there was no service record of the applicant at the National Personnel Records Center.  On 15 July 2008, the technician stated that in the absence of his service record, the request cannot be processed and that the applicant should send his request to the Awards Branch, HRC-Alexandria, VA, or to the Army Board for Correction of Military Records (ABCMR).



12.  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.

13.  Army Regulation 635-5 (Separations Document) 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of entitlement to the POW and the supporting documents he submitted were carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, the POW medal is awarded to individuals who are taken as a POW or held captive.  There is no record at the National Personnel Records Center and on file, and the applicant did not submit sufficient evidence in support of his contention that he was declared a POW during World War II.  The evidence of available records fail to show that he was captured and held captive as a POW by any enemy force.  There are no General Orders in his reconstructed record that shows he was awarded the POW Medal and his separation document makes no reference to his ever being a POW.

3.  The sincerity of the applicant's claim and witness statements indicating that he was taken as a POW are not in question.  However, absent any evidence of record confirming his POW status, the regulatory burden of proof necessary to support award of the POW Medal has not been satisfied in this case.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

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.


														XXX
      _______________________
      		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)                                         AR20080010053



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ABCMR Record of Proceedings (cont)                                         AR20080010053



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