IN THE CASE OF:	  

		BOARD DATE:	        1 July 2009

		DOCKET NUMBER:  AR20090004011 


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, as the son of a deceased former service member (FSM),  requests correction of the FSM's records to show award of the Purple Heart for his prisoner of war (POW) status for five months.

2.  The applicant states the FSM was a POW from 18 December 1944 to 22 May 1945 and he received a small compensation from the military because of deafness in his right ear caused by V2 rockets being fired next to the prison camp.  

3.  The applicant provides the following documents in support of his application:  the FSM's death certificate; a letter, dated 5 May 2005, from the National Personnel Records Center; a Northampton County certificate authorizing him as administrator of the FSM's will; his birth certificate; the FSM's obituary and newspaper article; and his mother's notice of death.  

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 (Enlisted Record and Report of Separation - Honorable Discharge) shows he was inducted into the Army on 28 January 1944  and entered active service on 18 February 1944.  He arrived in the European Theater of Operations on 22 August 1944 and departed on 16 June 1945.  

4.  The FSM was honorably discharged on 4 November 1945.  His WD AGO Form 53-55 shows he was awarded the Good Conduct Medal, the European-African-Middle Eastern Theater Service Medal with two bronze service stars, and the Combat Infantryman Badge.  

5.  His WD AGO Form 53-55 shows the entry "None" in item 34 (Wounds Received in Action).

6.  The applicant provided a copy of a newspaper article which indicates the FSM was captured in Luxembourg in December 1944 and was a POW for four months.  

7.  In a 9 September 2005 letter, the National Personnel Records Center informed the applicant that the FSM was entitled to the POW Medal.  

8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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 required treatment by military medical personnel, and the medical treatment must have been made a matter of official record.  Paragraph 2-8b(2) states that for the purpose of considering an award of the Purple Heart, a “wound” is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.  

9.  Section 521a of the National Defense Authorization Act of 1996 authorized award of the Purple Heart to any former POW who was wounded before 25 April 1962 while held as a POW or while being taken captive, in the same manner as a former POW who was wounded on or after that date.  Section 521b specifically stated that award of the Purple Heart for POWs 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that the FSM was a POW from 18 December 1944 to 22 May 1945 and received a small compensation from the military because of deafness in his right ear caused by V2 rockets being fired next to the prison camp.  However, there is insufficient evidence to support his claim.  

2.  Section 521a of the National Defense Authorization Act of 1996 authorized award of the Purple Heart to any former POW who was wounded before 25 April 1962 while held as a POW or while being taken captive, in the same manner as a former POW who was wounded on or after that date.  Although there is evidence which shows the FSM was taken captive and held as a POW during World War II, there is no evidence which indicates he was wounded while held as a POW.  

3.  Regrettably, there is insufficient evidence on which to base award of the Purple Heart in this case.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ____X___  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

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.



      _______ _   _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)                                         AR20090004011





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090004011



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1