IN THE CASE OF:	

		BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090012561 


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, the widow of a deceased former service member (FSM), requests correction of his WD AGO Form 53-55 (Enlisted Record and Report of Separation) to show he was a prisoner of war (POW) from December 1944 to April 1945.

2.  The applicant states that the FSM was a POW from December 1944 to April 1945, but his POW status is not listed on his discharge document.

3.  The applicant provides copies of an undated Veterans Administration (VA) letter and a second letter, dated 17 May 1988; a copy of a letter from the Army Service Forces, Office of the Commanding General, Washington, D.C., dated
19 April 1945; an abstract of Research Clinical Records from the University of Colorado Medical Center, Denver, CO, dated 4 February 1948; a copy of a letter from the Disabled American Veterans, Philadelphia, PA, dated 26 April 1988; a copy of her Marriage License, dated 18 September 1948; a copy of the FSM's Certificate of Death, dated 2 June 2009; and a copy of a Power of Attorney, dated 17 December 2001, in support of her request.

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 (NPRC) 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 shows he was inducted into the Army of the United States on 15 March 1943 and he entered active service in New Cumberland, PA, on 22 March 1943.  This form also shows that at the time of his separation, he held military occupational specialty (MOS) 745 (Rifleman) and he was assigned to Company B, 534th Chemical Mortar Battalion.

4.  The FSM's WD AGO Form 53-55 also shows he departed the continental United States (CONUS) on 21 October 1944 and he arrived in the European-African-Middle Eastern (EAME) Theater of Operations (TO) on 29 October 1944. He departed the EAMETO on 3 May 1945 and he arrived back in CONUS on
15 May 1945.  He completed 2 year, 11 months, and 9 days of CONUS service and 6 months and 25 days of foreign service.  He was honorably discharged on 31 October 1946 with a Certificate of Disability for Discharge.

5.  Item 31 (Military Qualifications and Date) of the FSM’s WD AGO Form 53-55 shows he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar and the Combat Infantryman Badge.

6.  Item 32 (Battles and Campaigns) of the FSM's WD AGO Form 53-55 shows he participated in the Ardennes and Rhineland campaigns during World War II (WWII).

7.  Item 33 (Decorations and Citations) of the FSM's WD AGO Form 53-55 shows he was awarded the American Theater Ribbon, EAME Campaign Medal with two bronze service stars, World War II Victory Medal, and the Army Good Conduct Medal.

8.  The FSM's reconstructed records contain a copy of a letter from the War Department, The Adjutant General's Office, Washington, D.C., dated 17 February 1945, to the FSM's grandfather advising him that the FSM had been missing in action since 16 December 1944 in Germany.

9.  The FSM's name is listed on the National Archives, WWII POW Data File for the period from 7 December 1941 to 19 November 1946, as having been imprisoned at Stalag 4B, Muhlberg Sachsen 51-13 and that he was returned to military control or liberated or repatriated.

10.  The applicant submitted the following documents in support of her request:

	a.  A copy of a letter, dated 19 April 1945, from the Director, American Prisoner of War Information Bureau, Provost Marshal's General Office, Army Service Forces, to the FSM's grandfather informing him that based on the information appearing in the POW communication, the FSM was listed as a POW at Stalag 8A, Germany.

	b.  A copy of an undated VA letter concerning the FSM's eligibility for benefits and services based on his POW status.

	c.  A copy of an abstract of Research Clinical Records from the University of Colorado Medical Center, Denver, dated 4 February 1948, in which the author states that the FSM was interviewed on 11 June 1946 and he was determined to have suffered from various ailments.

	d.  A copy of VA letter, dated 17 May 1988, that shows the FSM was denied service-connected benefits for certain conditions.

	e.  A letter from the Disabled American Veterans, Philadelphia, dated 26 April 1988, assisting the applicant with his VA entitlements.

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the POW Medal.  The regulation states that the POW Medal was authorized on 8 November 1985 and it is awarded to individuals who in past armed conflicts were taken prisoner or held captive.

12.  Army Regulation 635-5 (Separations Document) establishes the standardized policy for preparing and distributing discharge documents.  In pertinent part, it directs that, in the case of prisoners of war, the unit of assignment, country, and dates of capture and release will be entered in the “Remarks” section of the discharge document.

13.  Review of the FSM's records indicates his entitlement to an additional award which is not listed on his WD AGO Form 53-55.
14.  Army Regulation 600-8-22 provides for award of the Bronze Star Medal to members of the armed forces who, after 6 December 1941 and prior to 3 September 1945, have been cited in orders or in a formal certificate for meritorious or exemplary conduct in ground combat against the armed enemy.  A citation in orders for the Combat Infantryman Badge or Medical Badge awarded in the field during the period of actual combat against the armed enemy is considered as a citation for exemplary conduct in ground combat.  It also provides for the wear of one bronze service star on the appropriate campaign or service medal for each credited campaign.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the records of her deceased husband, an FSM, should be corrected to show his POW status.

2.  The evidence of record shows the FSM was initially reported in a missing status on 16 December 1944.  His status was later changed to POW as shown on the letter from the Director, American Prisoner of War Information Bureau, Provost Marshal General's Office, dated 19 April 1945.  The exact date of the FSM's release from captivity is unclear; however, his WD AGO Form 53-55 shows he departed the ETO on 3 May 1945, which indicates he was under U.S. control prior to that date.  Despite the lack of conclusive evidence of his release from captivity date, it appears that 30 April 1945 may be an appropriate date as an approximate date of his return to military control.  Therefore, the FSM is entitled to award of the POW Medal and correction of his records to show this award as well as his POW status.

3.  The evidence of record shows the FSM was awarded the Combat Infantryman Badge.  Therefore, he is entitled to award of the Bronze Star Medal based on award of this Combat Infantryman Badge and correction of his records to show this award.

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:

	a.  awarding him the Bronze Star Medal based on award of the Combat Infantryman Badge; 

   b.  adding to item 33 of the FSM's WD AGO Form 53-55 the Bronze Star Medal, based on award of the Combat Infantryman Badge, and the Prisoner of War Medal; and 

	c.  adding to item 43 (Remarks) of the FSM's WD AGO Form 53-55 the entry "Prisoner of War: Company B, 534th Chemical Mortar Battalion, Germany; 
19 December 1944 to 30 April 1945."



      ___________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)                                         AR20090012561



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ABCMR Record of Proceedings (cont)                                         AR20090012561



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