IN THE CASE OF:	

		BOARD DATE:	  8 January 2009

		DOCKET NUMBER:  AR20080013783 


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 separation grade of corporal be changed to the grade of sergeant based on his having been a prisoner of war for over 
27 months in Germany.  He also requests that his status of being a prisoner of war be reflected on a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty).

2.  The applicant states that he learned two years ago that he should have been promoted based on his 27 months as a prisoner of war.

3.  The applicant provides, in support of his application, copies of a telegram to his mother; two documents from Stalags VIIA and IIIB; his WD AGO Form 53-55 (Enlisted Record and Report of Separation, Honorable Discharge) with a date of separation of 23 September 1945; his Honorable Discharge Certificate; and a letter from U.S. Army Human Resources Command (HRC), Alexandria, VA.

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 service personnel records were lost or destroyed in a fire at the National Personnel Records Center in 1973.  The records available to the Army Board for Correction of Military Records were provided in part by the applicant and also obtained from alternate sources and are sufficient for the Board to conduct a fair and impartial review of this case.  The primary record available to this Board is the applicant’s WD AGO Form 53-55.  

3.  The applicant's WD AGO Form 53-55 shows he was inducted into the Army of the United States and entered active duty on 10 February 1941.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 432 (Bandsman, Clarinet).  

4.  The applicant arrived in the European-African-Middle Eastern Theater on 
2 March 1942.

5.  The National Archives World War II Prisoners of War Data File, 12/7/1941 - 11/19/1946, lists the applicant as having been captured on 17 February 1943 in the North African Theater: Tunisia.  His grade at the time of capture is listed as corporal and Germany is listed as the detaining power.  The data file shows the applicant was returned to military control, liberated, or repatriated on 9 June 1945.

6.  A telegram submitted by the applicant from The Adjutant General, dated
8 March 1943, notified the applicant's mother that he was missing in action in the North African area since 17 February (1943).  The telegram identifies the applicant as a corporal.

7.  A document submitted by the applicant, that was to be retained permanently by Allied prisoners, identified his unit at the time of his capture as the 168th Infantry, 34th Infantry Division.

8.  The applicant arrived in the continental U.S. on 12 June 1945.  On 
23 September 1945 the applicant was honorably discharged by reason of Convenience of the Government (RR 1-1 Demobilization).  He had completed
4 years, 7 months, and 24 days of active service, of which 2 years, 3 months, and 23 days were as a prisoner of war.

9.  Item 3 (Grade) of the applicant's WD AGO 53-55 contains the entry "CPL" (corporal).  Item 6 (Organization) identifies the applicant's unit as the 168th Infantry Band.  Item 38 (Highest Grade Held) of the applicant's WD AGO 53-55 contains the entry "CPL."

10.  A Final Payment Roll, dated 23 September 1945, from the Separation Center at Fort Sam Houston, Texas shows the applicant's final payment was based on the grade of corporal.

11.  Army Regulation 615-5 (Enlisted Men - Appointment and Reduction of Noncommissioned Officer and Privates, First Class), Change No. 6, dated
23 May 1945, provided, in pertinent part, that commanders may waive the requirements of an authorized vacancy to appoint temporarily to the next higher grade any enlisted person below the first pay grade who is returned to United States military control from a status of: (1) internee, (2) missing in action, 
(3) evading capture in enemy held territory, or (4) prisoner of war (including those repatriated under the provisions of the Geneva Convention), and who presumably would have been promoted except for his internment, evasion or capture, provided that the circumstances surrounding the individual's loss to the Army of the United States were honorable.

12.  War Department, The Adjutant General's Office, Letter AG 383.6 (Procedures for Processing, Return, and Reassignment of Recovered Personnel (Short Title:  POW)), dated 31 May 1945, provided additional guidance on the policy for an immediate one grade advancement of those individuals who presumably would have been advanced in grade but for their loss to United States military control.

13.  The Total Army Personnel Command (PERSCOM) (now known as the Human Resources Command (HRC)) previously advised the Board that a message, date time group 212259 September 1945, from the Military Personnel Division, Army Service Forces, Washington, D.C., stated that all recovered enlisted personnel, below the grade of master sergeant, who had been absent from military control under honorable conditions for at least 18 months, would receive a one grade promotion.

14.  War Department General Staff Disposition Form, dated 24 September 1945, Subject:  Promotion of Recovered Prisoners of War, directed that upon their return to military control, necessary action would be taken to promote one grade all enlisted personnel below the grade of master sergeant who were in the status 

of prisoner of war, evader, or escapee, provided such personnel were in such status for a period of 18 months or longer and provided further that the circumstances surrounding their loss to the Army were honorable.   

15.  Army Regulation 635-5 (Separation Documents), currently in effect, establishes the standardized policy for preparing and distributing discharge documents.  In pertinent part, it directs that, for a Soldier with prisoner of war documentation, the entry "PRISONER OF WAR, (unit of assignment/country), (date of capture and release date" will be entered in the “Remarks” section of the Soldier's discharge document.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been promoted to the grade of sergeant based on his having been a prisoner of war.  He also contends a 
DD Form 215 should be issued to him reflecting his status as a prisoner of war.

2.  The National Archives World War II Prisoners of War Data File, 12/7/1941 - 11/19/1946 confirms the applicant was captured in the North African Theater: Tunisia and held as a prisoner of war for a little over 27 months.  This data file and the telegram submitted by the applicant confirm that he was a corporal at the time of his capture.

3.  The applicant's period of service entered on his WD AGO 53-55 was characterized as honorable.  Therefore, it is reasonable to conclude that the circumstances surrounding the applicant's capture and period of captivity were honorable.

4.  The Final Payment Roll reflecting this applicant's final payment in the grade of corporal indicates he was not promoted upon his release from captivity.

5.  Based on the foregoing, the applicant is entitled to a one-grade promotion to sergeant effective 9 June 1945, the date of his return to military control, in accordance with the War Department General Staff Disposition Form, dated 
24 September 1945.  Therefore, items 3 and 38 on the applicant's WD AGO Form 53-55 should be corrected to show sergeant instead of corporal.  

6.  In view of the applicant's confirmed prisoner of war status, his WD AGO 53-55 should be amended to include in Item 55 (Remarks) the entry, “PRISONER OF WAR, 168th Infantry/North African Theater: Tunisia, 17 February 1943 - 9 June 1945."



BOARD VOTE:

___X____  ___X____  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 showing the applicant was promoted to the grade of sergeant on 9 June 1945.

2.  The Board also recommends that a DD Form 215 be issued correcting 
Items 3 and 38 of the applicant's WD AGO 53-55 to read sergeant instead of "CPL" and adding to Item 55 the entry "PRISONER OF WAR, 168th Infantry/North African Theater: Tunisia, 17 February 1943 - 9 June 1945."

3.  Additionally, the Defense Finance and Accounting Office should audit the applicant's pay records and provide the applicant any pay and allowances due him based on the above corrections.



      _________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)                                         AR20080013783



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ABCMR Record of Proceedings (cont)                                         AR20080013783



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