IN THE CASE OF:	  

		BOARD DATE:	  	  26 March 2009

		DOCKET NUMBER:  AR20080016548 


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, reconsideration of his request for correction of his records to show his prisoner of war (POW) status.

2.  The applicant states, in effect, he was assigned to Company E (not Company D), 28th Infantry Regiment, 8th Infantry Division, during World War II when he was captured by the Germans and held as a POW at Port of Brest, France, for somewhere between 26 and 28 days in August 1944.

	a.  The applicant states, in response to the question raised in the original consideration of his application as to why he did not sign his WD AGO 
Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) if it was incorrect, he states, "[w]e were just given word that the war was over and were shoved out of the Army."

   b.  The applicant provides a list of the names of Soldiers who were also assigned to Company E, held as POWs, and then assigned to Company A after they were released.  Of these Soldiers, he states that Lieutenant R____ escaped, was caught, and was returned; he then escaped a second time and made it back to his unit.  He also states that Captain George R____, Jr. was his company commander and that he was wounded.  The applicant also provides the names of three Soldiers who were POWs with him, but lost their lives.  He adds that the Department of the Army neglected to list any of the 40 (or more) men who were captured and taken prisoner from Company E and Company G, and he asks why they should be forgotten.

	c.  The applicant provides the regulatory responsibilities and functions of the Director, Defense POW/Missing in Action (MIA) Office.  He also provides a definition for a "former POW" and the guidance that the Department of Veterans Affairs (VA) shall accept decisions based on Service Department findings, and the guidance for other decisions in which the VA cannot accept the Service Department findings.

	d.  The applicant concludes by stating when the war was over and he was discharged, he was thankful to have the war behind him.  Now, as he is older, it bothers him that his records are not correct.  He adds this correction will allow him to seek maximum benefits from the Department of VA.

3.  The applicant provides copies of a VA Form 21-4138 (Department of Veterans Affairs, Statement in Support of Claim), dated 19 February 2009; a two-page self-authored statement, undated; a map of the Crozon Peninsula, France circa  1943-1945 (exhibit A); page 25 of Eighth Infantry Division, A Combat History by Regiments and Special Units (exhibit B); two Western Union Telegraphs, one dated 25 September 1945 and one undated (exhibit C); a newspaper article, Syracusan Prisoner, Solvay Man Missing, undated (exhibit D); page 69 of an unknown publication showing photographs of Company A Soldiers, undated (exhibit E); page 42 of the Combat History, First Battalion, 28th Infantry Regiment, 8th Infantry Division, undated (exhibit F); his WD AGO Form 53-55 with an effective date of 16 October 1945; and a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 5 March 2008.

CONSIDERATION OF EVIDENCE:

1.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides policy and sets forth procedures for processing requests for correction of military records and requests for reconsideration.  This Army regulation, in pertinent part, allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within 1 year of the ABCMR's original decision and it has not previously been reconsidered.  While it appears the applicant did not file within the time frame provided, 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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20060017375 on 10 July 2007.
3.  The applicant provides a new argument that will be considered by the Board.

4.  The applicant’s military service 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.  This case is being reconsidered using military records which were summarized in the previous consideration of the applicant's case, reconstructed records that primarily consist of the applicant's separation document, and the documentary evidence the applicant provided.

5.  The applicant's WD AGO Form 53-55 shows he was inducted into the Army of the United States on 10 November 1942, entered active service on 17 November 1942, and served in military occupational specialty 745 as an infantry squad leader in Company A, 28th Infantry Regiment.  Item 36 (Service Outside Continental U.S. and Return) shows he departed the U.S. on 3 December 1943, arrived in the European theater of operations (ETO) on 17 December 1943, departed the ETO on 29 June 1945, and returned to the U.S. on 6 July 1945.  Item 32 (Battles and Campaigns) shows he participated in the Normandy, Northern France, Rhineland, and Central Europe campaigns of World War II.  The applicant's WD AGO Form 53-55, as amended by his DD Form 215, shows he was awarded the Bronze Star Medal, Purple Heart (1st Oak Leaf Cluster), Good Conduct Medal, European-African-Middle Eastern Campaign Medal with four bronze service stars, World War II Victory Medal, Army of Occupation Medal with Germany Clasp, Combat Infantryman Badge, Expert Marksmanship Qualification Badge with Pistol Bar, Presidential Unit Citation, and Army Lapel Button.  The WD AGO Form 53-55 also shows the applicant was honorably discharged on 16 October 1945.  At the time he had completed 1 year, 3 months, and 28 days of continental service; 1 year, 7 months, and 2 days of foreign service; and 2 years, 11 months, and 7 days of longevity for pay purposes.

6.  The applicant’s available military service records are absent any evidence that he was held as a POW during the period of service under review.

7.  There is no evidence that the applicant submitted an application or letter to the National Personnel Records Center to request a determination of his POW status and/or award of the POW Medal.

8.  A search of the National Archives and Records Administration (NARA) Access to Archival Databases (AAD) World War II Prisoners of War Data File failed to show the applicant was a POW during World War II.  A search of the NARA AAD World War II POW Data File was also conducted for the 8 Soldiers the applicant identified in his application as having been POWs with him in France.  While the name of one of these individuals (i.e., B____, Robert) produced results, it does not appear this is the same individual as the one identified by the applicant because the Soldier served in the Army Air Corps and was held as a POW in Stalag 17B Braunau, Gneikendorf near Krems, Austria, from November 1943 to July 1945.  In this regard, it is noted that this record search failed to show any of the individuals named by the applicant as being listed as having been in a POW status during World War II.

9.  In support of his application, the applicant provides the following documents.

	a.  A VA Form 21-4138, dated 19 February 2009; a 2-page self-authored statement, undated; WD AGO Form 53-55 with an effective date of 16 October 
1945; and DD Form 215, dated 5 March 2008.  These documents were all previously introduced and considered in this Record of Proceedings.

	b.  A map of the Crozon Peninsula, France, circa 1943-1945 (exhibit A) that shows the route the applicant’s unit followed from Ireland into France and where his unit was surrounded, he was captured, and taken to the Crozon Peninsula in France.

	c.  Page 25 of Eighth Infantry Division, A Combat History by Regiments and Special Units (exhibit B), that, in pertinent part, documents the 28th Infantry Regiment’s military operations from 24-31 August 1945, summarizes events from 24-27 August 1945, and shows that, "[a]t 1220 hours [27 August 1945] communication with Companies E and G was severed and an officer patrol was sent out to investigate" and that as of 31 August 1945 a total of 265 enlisted men were MIA.

	d.  Two Western Union Telegraphs, dated 25 September 1945 and one undated (exhibit C), that show The Adjutant General, Department of the Army, notified the applicant’s father that the applicant was reported MIA since 29 August 1945 and that he returned to duty on 18 September 1945.

	e.  A newspaper article, Syracusan Prisoner, Solvay Man Missing, undated (Exhibit D), that shows, in pertinent part, the applicant’s parents were informed that the applicant had been missing in Southern France since 29 August 1945.

	f.  Page 69 of an unknown publication showing photographs of Company A Soldiers, undated (exhibit E), that, in pertinent part, contains a "head shot" photograph of the applicant in uniform and indicates he held the rank of sergeant.  (The applicant states he was assigned to Company A after his release.)

	g.  Page 42 of the Combat History, First Battalion, 28th Infantry Regiment, 8th Infantry Division, undated (exhibit F), that contains a paragraph summarizing the most unusual feature of the campaign from a tactical point of view and, in pertinent part, indicates, "[o]nce before we had tried a night attack at Brest, which was a dismal failure."

10.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards policy.  Paragraph 2-9 contains guidance on award of the POW Medal.  This paragraph states the POW Medal was authorized on 8 November 1985 and is authorized for any person who, while serving in any capacity with the U.S. Armed Forces, was taken prisoner and held captive after 5 April 1917 while engaged in an action against an enemy of the United States.

	a.  This paragraph states that all requests for award of the POW Medal for past armed conflicts will be initiated by former POWs or their next of kin using a personal letter.  The following documents, as applicable, should be submitted with POW Medal applications to assist in validating the award:  Army separation documents; casualty reports; messages/letters/telegrams sent home; unit journals; diaries; sworn eyewitness statements or affidavits; photos, identification card, or other documents taken or obtained while in captivity; news clippings and other evidence in support of the request.  Applications or personal letters should be forwarded to the National Personnel Records Center, 9700 Page Avenue, St. Louis, MO 63132-5100, for members retired or discharged prior to 1 October 2002.  Statutory and regulatory time limits pertaining to award of the POW Medal do not apply.  Award of the POW Medal may be awarded anytime after submission of documented evidence that all criteria have been met.

	b.  This paragraph also states that personnel officially classified as MIA are not eligible for award of the POW Medal.  The POW Medal will only be awarded when the individual's POW status has been officially confirmed and recognized as such by the Department of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his request for correction of his records to show his POW status should be reconsidered because he was captured by the Germans and held as a POW at Port of Brest, France, for somewhere between 26 and 28 days in August 1944.

2.  The evidence of record shows that the Department of the Army notified the applicant’s father that the applicant was reported MIA since 29 August 1945 and that he returned to his unit for duty on 18 September 1945.  Thus, official Army records confirm that the applicant was in an MIA status from 29 August 1945 through 17 September 1945, and this period equates to a total of 20 days in an MIA status.

3.  The applicant's contention that his military records should be corrected to reflect his POW status was carefully considered.  The sincerity of the applicant's claim that he was taken as a POW is not in question.  However, the applicant fails to provide any casualty reports, sworn eyewitness statements, or affidavits that corroborate his claim.  It is noted that the documentary evidence the applicant does provide only serves to substantiate that the applicant was in an MIA status during the period in question.  In addition, there is no indication in his military records that he ever attempted to obtain POW status or the POW Medal from the date of his discharge until his initial application to this Board on 15 November 2006, more than 61 years after his discharge.

4.  The evidence of record fails to show the applicant's status as a POW, either in his military service records, the NARA AAD World War II POW Data File, or in the documentary evidence the applicant provides in support of his application.  Thus, there is insufficient documentary evidence to show the applicant was held as a POW from 29 August 1945 to 18 September 1945.  Therefore, in view of all of the foregoing, the applicant is not entitled to correction of his military service records to show he was a POW during World War II or award of the POW Medal.

5.  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.

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 to amend the decision of the ABCMR set forth in Docket Number AR20060017375, dated 10 July 2007.
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 our Nation.  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)                                         AR20080016548



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ABCMR Record of Proceedings (cont)                                         AR20080016548



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