IN THE CASE OF:	  

		BOARD DATE:	  20 January 2010

		DOCKET NUMBER:  AR20090013051 


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 spouse of the deceased former service member (FSM), requests that the FSM's records be corrected to show award of the Purple Heart.

2.  The applicant states she recently learned that Congress passed legislation in the National Defense Authorization Act of 1996 concerning the award of the Purple Heart to former prisoners of war (POW).  She states her husband was a POW for 3 and 1/2 years.  Additionally, she states he lost his eyesight during captivity and his injuries affected him the rest of his life.  

3.  The applicant provides, in support of her application, copies of her husband's WD AGO Form 100 (Separation Qualification Record); his WD AGO Form 53-55 (Enlisted Record and Report of Separation, Honorable Discharge); his Affidavit, dated 18 January 1946; his death certificate; and an article from the Ex-POW Bulletin for March/April 2009.              

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 shows he enlisted in the New Mexico Army National Guard on 27 December 1940 and he entered active duty the same day. He arrived in the Philippines on 26 September 1941.  

4.  The National Archives World War II POW Data File, 12/7/1941 - 11/19/1946, lists the FSM as having been captured in the Southwest Pacific Theatre, Philippine Islands.  At time of his capture the FSM was assigned to the 200th Coast Artillery Regiment (Anti-Aircraft).  The detaining power was Japan.  The data file shows the FSM was returned to military control, liberated, or repatriated. 

5.  On 1 June 1946, the FSM was discharged and provided a Certificate of Disability Discharge.  Item 33 (Decorations and Citations) of the FSM's WD AGO Form 53-55 does not contain an entry for the Purple Heart.  Item 34 (Wounds Received in Action) of his WD AGO Form 53-55 contains the entry "None."

6.  Item 55 (Remarks) of the FSM's WD AGO Form 53-55 states the FSM was separated from the service on a partial service record and an affidavit from the Soldier.  In his affidavit, the FSM stated he was taken a POW by the Japanese Army on 9 April 1942 at Bataan, Philippine Islands.  He stated he was hospitalized in Yokohama, Japan and on 19 January 1943 the camp doctor, a fellow prisoner, had him transferred to Tokyo Army Hospital, Tokyo, Japan for pellagra (a vitamin deficiency disease most commonly caused by a chronic lack of niacin in the diet) paralysis and total blindness for a period of about 3 months.  He stated he was taken to a POW hospital on 7 August 1943.  He stated he was sent back to a work camp on 20 January 1945 and he received additional treatment from the camp doctor, a fellow prisoner.  He stated he was liberated by American troops on 5 September 1945 at Yokohama.

7.  Army Regulation 600-45 (Decorations), then in effect, which governed the award of Army decorations until 23 August 1951, stated the Purple Heart was awarded citizens of the United States serving with the Army, who are wounded in action against an enemy of the United States, or as a direct result of an act of such enemy, provided such wound necessitated treatment by a medical officer.  This regulation stated 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.  

8.  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 a POW under Section 521 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 contends the FSM should have been awarded the Purple Heart because he lost his eyesight while he was a POW in WWII.

2.  The conditions the FSM suffered from, pellagra paralysis and total blindness, were likely due to the intolerable conditions the Japanese were known to have kept their prisoners in.  However, there is no evidence that either of these conditions were a result of a wound or injury (i.e., from an outside force, element, or agent) inflicted by the enemy (such as might have been true had the FSM’s blindness been caused by a blow to his head).

3.  Regrettably, there is insufficient evidence upon 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:

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 her husband in service to our Nation.  The applicant and all Americans should be justifiably proud of her husband's 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)                                         AR20090013051



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ABCMR Record of Proceedings (cont)                                         AR20090013051



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