IN THE CASE OF:	  .

		BOARD DATE:	      16 JUNE 2009

		DOCKET NUMBER:  AR20080019395 


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 he be awarded the Prisoner of War (POW) Medal. 

2.  The applicant states that his military service records do not identify him as a POW, but that his Silver Star citation clearly shows that he was surprised by an enemy soldier on 2 November 1950 in Korea and was forced to surrender.  He also contends that the reason he was not formally recognized as a POW at the time was because he fought his captor instead of letting him keep him captive and taken behind enemy lines.  

3.  The applicant provides Headquarters, Eighth United States Army Korea (EUSAK) General Orders Number 59, dated 8 February 1951, which awarded him the Silver Star; his DD Form 215 (Correction to DD Form 214 (Certificate of Release or Discharge from Active Duty)), dated 13 January 1994; and a letter, dated 17 November 2008, from an attorney 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 applicant's military records show that he enlisted in the Regular Army (RA) on 8 October 1948, and served on continuous active duty until he was placed on the retired list on 1 May 1972 in the rank/grade of sergeant first class (SFC)/E-7.  His overseas assignments include a tour in Korea from 
22 September 1950 to 3 December 1950, two tours in Germany from September 1953 to September 1956 and from October 1959 to June 1961, a tour in France from November 1962 to August 1965, and a tour in Vietnam from 17 May 1970 to 7 May 1971.  His DD Form 214 that was issued at the time of his retirement, as amended by his DD Form 215, dated 13 January 1994, shows that he was awarded the Silver Star, Bronze Star Medal, Purple Heart, Air Medal, Army Commendation Medal, Good Conduct Medal (7th Award), Army of Occupation Medal with Germany Clasp, National Defense Service Medal with one bronze service star, Korean Service Medal with two bronze service stars, Vietnam Service Medal with two bronze service stars, Expert Marksmanship Qualification Badge with Rifle Bar, Marksman Marksmanship Qualification Badge with Carbine Bar, Army Recruiter Badge, Driver and Mechanic Badge with Driver-W (for wheeled vehicles) Bar, Republic of Korea Presidential Unit Citation, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Campaign Medal.

3.  The applicant's Silver Star citation states that on 2 November 1950, when his company's position was overrun near Unsan, Korea, he and a fellow Soldier were surprised by an enemy soldier and were forced to surrender.  Upon being ordered out of his foxhole, the applicant, who was unarmed, attacked the enemy soldier and, in hand-to-hand combat, disarmed him, forced him to the ground, and held him while his fellow Soldier obtained a weapon and shot the enemy soldier.

4.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the POW Medal is to be issued only to those U.S. military personnel and other personnel granted creditable U.S. military service who were taken prisoner and held captive:

	a.  while engaged in an action against an enemy of the United States;

	b.  while engaged in military operations involving conflict with an opposing foreign force;
	c.  while serving with friendly forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party; and

	d.  by foreign armed forces that are hostile to the United States, under circumstances which the Secretary concerned finds to have been comparable to those under which persons have generally been held captive by enemy armed forces during periods of armed conflict (emphasis added). 

5.  Army Regulation 15-185 (ABCMR) 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 he should be awarded the POW Medal.

2.  The fact that the applicant's Silver Star citation indicates that he was forced to surrender to an enemy Soldier was noted.  However, while he may have been taken prisoner for a brief moment, he was not held captive by enemy forces, as the moment he exited his foxhole, he attacked the enemy soldier and he and a fellow Soldier disarmed and shot the enemy soldier.  Additionally, the fact that he may have been taken prisoner for what might have been less than one minute was not found to be circumstances comparable to those under which persons have generally been held captive by enemy armed forces during periods of armed conflict.  In view of the foregoing, there is insufficient basis upon which to award the POW Medal to the applicant in this case.

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 him throughout his military career, and especially during the Korean and Vietnam Wars.  The applicant and all Americans should be justifiably proud of his honorable service in arms.



      _________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)                                         AR20080019395



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080019395



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1