IN THE CASE OF:	  

		BOARD DATE:	        23 October 2008

		DOCKET NUMBER:  AR20080010313 


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 that his deceased father, a former service member (FSM), be awarded the Purple Heart.

2.  The applicant states that the FSM was wounded in action on 7 October 1944 during his escape from the “Shinyo Maru,” also known as the “Hell Ship” when he was struck by machine gun fire in his left knee and foot when making shore, and that he was presented with the Purple Heart by General George C. Marshall at the Pentagon in the fall of 1944.

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

	a.  the FSM’s WD AGO Form 53-55 (Enlisted Record and Report of Separation, Honorable Discharge), dated 11 June 1945.

	b.  Copy of Citation awarding the FSM the Bronze Star Medal. 

	c.  The FSM's WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty or Retirement), dated 10 June 1945.

	d.  Veterans Administration (VA), Board of Veterans Appeals, Findings and Decision, dated 16 April 1986.

	e.  The FSM's Certificate of Death, dated 1 June 2001.
	f.  The applicant's Birth Registration Card.

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 FSM’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 FSM’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 FSM's WD AGO Form 53-55 shows he enlisted in the Regular Army and entered active duty on 14 October 1940.  This form also shows he was trained in military occupational specialty (MOS) 657 (Medical Aidman) and that at the time of his separation, he was assigned to the 9111th Technical Service Unit, Quartermaster Corps, Climatic Research Laboratory, Lawrence, Massachusetts.

4.  The FSM's WD AGO Form 53-55 shows he served in the Asiatic-Pacific Theater during the period 20 February 1941 through 6 November 1944.

5.  The FSM's WD AGO Form 53-55 shows he completed 10 months and 16 days of continental service and 3 years, 9 months, and 12 days of foreign service.  He was honorably separated on 11 June 1945.

6.  Item 32 (Battles and Campaigns) of the FSM’s WD AGO Form 53-55 shows he participated in the Southern Philippines campaign during World War II (WWII).

7.  Item 33 (Decorations and Citations) of the FSM's AGO Form 53-55 shows he was awarded the Good Conduct Medal, the Philippines Defense Ribbon with one service star, the American Defense Service Medal with Clasp, and the Asiatic-Pacific Theater Campaign Ribbon.  Item 33 does not show award of the Purple Heart.

8.  Item 34 (Wounds Received in Action) of the FSM's WD AGO Form 53-55 contains the entry "None."

9.  The FSM's records do not contain General Orders awarding him the Purple Heart. 

10.  Item 11 of the FSM’s WD AGO Form 38, dated 10 June 1945, shows several entries, among which are the entries “WIA, in left knee, machine gun bullet, 1944, no hospital, prisoner of war,” “WIA-Crease over inner aspect of left foot,” and “Prisoner of war two and half years-Pacific.”  Additionally, Item 16 (Skin) of this form shows the entries “WIA, Superficial scar to left knee, mild, non-adherent” and “WIA, penetrating wound, medial surface, left foot, mild.”

11.  The applicant submitted a copy of the VA Findings and Decision, dated 16 April 1986 that shows the FSM's appeal for entitlements to an increased rating and compensation for a gunshot wound of the left knee was denied.

12.  The applicant submitted a copy of a citation that shows the FSM was awarded the Bronze Star Medal and reads as follows:

[Applicant], a prisoner of war of the Japanese, rendered outstanding services to his fellow Americans during the period 7-10 September 1944.  As a member of the Medical Corps, he was aboard a prison ship which was attacked and sunk while evacuating prisoners from the Davao Penal Colony in the Philippine Islands.  Gaining the shore along with 83 other survivors and disregarding a serious knee wound, [Applicant] immediately took charge of the wounded and injured, working night and day to alleviate their sufferings.

13.  As early as the fall of 1942, the Japanese began moving POWs out of the Philippines by sea to Japan, Formosa, Manchuria, Korea, and other locations requiring "slave labor."  These 4 nightmarish voyages were conducted on unmarked freighters which came to be known as “Hell Ships.”  A thousand and more prisoners were crammed into cargo holds, spaces only big enough for a quarter that number, oftentimes with only enough room to sit for a journey that would last weeks.  Never enough buckets for their waste, and with hundreds of dysentery cases, the healthy succumbed.  Deprived of air and water and exposed to intoxicating heat, men suffocated or went mad.  Ships carrying POWs went unmarked and thus were targeted by American submarines.  One in every three prisoners of the Japanese who died in captivity died at sea. 
14.  The Shinyo Maru was a Japanese freighter ship, being used to transport 750 Allied POWs from the Philippines to Japan.  As the ship was not marked as carrying POWs, on 7 September 1944 she was torpedoed and sunk off the island of Mindanao by the US submarine Paddle.  The Shinyo Maru broke apart and quickly sank.  Of the approximately 750 POWs on board, just 83 survived and made it to shore.

15.  The Purple Heart was established by General George Washington at Newburgh, New York on 7 August 1782 during the Revolutionary War.  It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action.

16.  Army Regulation 672-5-1 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have been treated by military medical personnel, and the medical treatment must have been made a matter of official records.  This regulation also provides that there is no time limitation on requests for award of the Purple Heart.

17.  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.

18.  Review of the FSM's records indicates his entitlement to additional awards that are not shown on his DD Form 214.

19.  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.



20.  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.

21.  Army Regulation 600-8-22 provides, in pertinent part, for award of the World War II Victory Medal.  It is awarded for service between 7 December 1941 and 31 December 1946, both dates inclusive.

22.  Item 32 of the FSM's WD AGO Form 53-55 shows he was awarded the Asiatic-Pacific Theater Campaign Medal.  Additionally, Appendix B of Army Regulation 600-8-22 shows that the applicant participated in the Sothern Philippines campaign during his service in WWII.  This same regulation states that a bronze service star will be awarded for wear on the Asiatic-Pacific Campaign Medal for participation in each campaign.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the FSM was wounded in his left knee and foot while being a POW on an enemy vessel during his escape on 7 September 1944.  Therefore, he is entitled to award of the Purple Heart and correction of his records to show this award.

2.  The evidence of record shows that the FSM served a qualifying period for award of the World War II Victory Medal, which is not shown on his records; therefore he is entitled to correction of his records to show this award.

3.  The evidence of record shows that the FSM was a prisoner of war for two and a half years during his service in the Asiatic-Pacific Theater, therefore, he is entitled to award of the POW Medal and correction of his records to show this award.

4.  The evidence of record shows the FSM was awarded the Asiatic-Pacific Campaign Medal.  Additionally, records show the applicant participated in one campaign while serving in Pacific Theater.  Therefore, he is entitled to award of one bronze service star to be affixed to the Asiatic-Pacific Campaign Medal.

5.  The citation for award of the Bronze Star Medal submitted by the applicant is consistent with the events that took place in September 1944 and with the FSM's wounds as stated on his WD AGO Form 38.  Therefore, there is sufficient evidence to show that the FSM was awarded the Bronze Star Medal for rendering outstanding service to his fellow Americans during the period 7 September 1944 to 10 September 1944, and the FSM is entitled to correction of his records to show this award.

BOARD VOTE:

___X____  __X_____  __X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  awarding the FSM the Purple Heart for wounds received in action on 7 September 1944 in the Pacific Theater; and

	b.  showing award of the Purple Heart, the Bronze Star Medal, the POW Medal, the World War II Victory Medal, and one bronze service star to be affixed to his already-awarded Asiatic-Pacific Campaign Medal.



															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)                                         AR20080010313



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ABCMR Record of Proceedings (cont)                                         AR20080010313



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