IN THE CASE OF:	  

		BOARD DATE:	10 September 2009  

		DOCKET NUMBER:  AR20090002886 


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, on behalf of her father, that records of her deceased brother, a former service member (FSM), be corrected to reflect his Prisoner of War (POW) status.

2.  The applicant states, in effect, the FSM was captured and subsequently killed.

3.  The applicant provides the following documents in support of her application:  letter, dated 16 March 2009; a DA Form 52-2 (Report of Casualty); electronic mail (E-mail) document, dated 15 December 2008; a notarized letter of support, dated 9 February 2009; email, dated 5 February 2009; an undated letter; and a letter, dated 9 March 2009.

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show that he enlisted in the Regular Army (RA) and entered active duty on 18 April 1966.  He was trained in, awarded, and served in military occupational specialty 71R (Broadcast Specialist). 

2.  The FSM's DA Form 20 (Enlisted Qualification Record) shows that he was assigned duty in the Republic of Vietnam on 21 March 1967.  It also shows he was promoted to the rank of specialist five (SP5/E-5) on 11 January 1968 and this was the highest rank he attained while serving on active duty.

3.  The FSM's Official Military Personnel File (OMPF) contains an AGPZ Form 80 (Report of Casualty), dated 14 February 1968, which shows he died from a gunshot wound he received while in a building when engaged in a firefight against a hostile force.  A Western Union Telegram on file dated 16 February 1968 confirms that his parents were notified of this action.

4.  The OMPF also contains a carbon copy of a message, dated 18 April 1968.  This message indicates the FSM was last seen at the villa billets when it was overrun by a hostile force.

5.  On 1 May 1968, Headquarters, 1st Cavalry Division, published General Orders Number 2701.  These orders announced the FSM's award of the Bronze Star Medal (BSM) with "V" Device for heroism against a hostile force, on 
4 February 1968.  These orders also indicate the FSM was repeatedly exposed to hostile fire and after having sustained a wound, he continued to engage the hostile force.

6.  The OMPF contains an NA Form 13164 (Information Releasable Under the Freedom of Information Act).  It confirms that the FSM served in the RA from 18 April 1966 to 5 February 1968 and that he earned the following awards during his active duty tenure:  RVN Campaign Medal with Device 1960, National Defense Service Medal, Vietnam Service Medal with bronze service star, Overseas Service Bar, Purple Heart with 1st Oak Leaf Cluster, Army Commendation Medal, BSM w/"V" Device, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, RVN Military Merit Medal, and RVN Gallantry Cross with Palm Unit Citation.

7.  The applicant provides a sworn witness statement written by a Soldier who served directly with the FSM.  He attests that the FSM was captured on or about 1000 hours 5 February 1968, while assigned with the 1st Cavalry Division as a broadcast specialist.  He indicates he moved the FSM closer to the inside wall of the building to protect him after he sustained an open fracture wound to his upper left arm.  The witness indicates that while struggling to reach the Military Assistance Command, Vietnam #3 Compound, they were caught in a three-way crossfire, eventually overrun, captured by the North Vietnamese, and bound with commo wire with their arms and hands behind their backs.  He states that at approximately 1015 hours on 5 February 1968, they were being led away from their last firefight.  The witness indicates that the FSM started to stumble.  He tried to use his body to keep the FSM up and going when the FSM was shot with an automatic weapon while he was poked in the back with an AK47 and told to hurry up.  He affirms that the FSM was killed shortly after being captured and also provides the fate and account of other Soldiers.

8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the POW Medal.  Paragraph 2-9 states, in pertinent part, that the POW Medal was authorized on 8 November 1985 and is awarded to individuals who in past armed conflicts were taken prisoner or held captive 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.  The primary next of kin of eligible prisoners of war who die in captivity may be issued the POW Medal regardless of the length of stay in captivity.  

9.  Paragraph 2-9 of the awards regulation also states that casualty reports; messages/letters/telegrams sent home; unit journals; diaries; sworn eyewitness statements or affidavits; photos, ID Card, or other documents taken or obtained while in captivity; news clippings and other evidence in support of the request  should be submitted with POW Medal applications to assist in validating the award.  Statutory and regulatory time limits pertaining to award of the POW Medal do not apply.  Award of the POW Medal may be awarded at any time after submission of documented evidence that all criteria have been met.

DISCUSSION AND CONCLUSIONS:

The applicant’s contentions that the FSM being killed while a POW entitles him to posthumously receive POW status has been carefully considered and found to have merit.  The BSM order on file confirms the FSM continued to engage the enemy after being wounded on 4 February 1968.  The AGPZ Form 80 confirms he died from a gunshot wound he received while engaged in a firefight against a hostile force on 5 February 1968.  An available document also indicates the FSM was last seen in a building on 5 February 1968.  These events support the details found in the witness statement that indicates after being wounded in action, the FSM was captured by the enemy, and subsequently killed based on his failing physical condition.  Therefore, in the interest of justice, it would be appropriate to recognize the FSM's POW status at this time by awarding his next of kin the POW Medal on his behalf.

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 showing the former service member was in a Prisoner of War Status at the time of his death and awarding his next of kin the Prisoner of War Medal.



      _______ _   _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)                                         AR20090002886



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ABCMR Record of Proceedings (cont)                                         AR20090002886



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