IN THE CASE OF:	  

		BOARD DATE:	  20 May 2010

		DOCKET NUMBER:  AR20090016647 


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 brother of a deceased former service member (FSM), requests correction of the FSM's records to show award of the Purple Heart.

2.  The applicant states that the FSM was a prisoner of war (POW) during World War II and he died while in captivity.  He adds the Department of Defense (DoD) changed the policy to authorize posthumous award of the Purple Heart to POWs who died in captivity.

3.  The applicant provides copies of a Western Union telegram, three newspaper articles, a two-page extract from the Dryden Town Historical Society; a VA Form 3101 (Request for Army Information); the FSM's Certificate of Baptism; and the applicant's Birth Certificate, Honorable Discharge from the U.S. Marine Corps (USMC), and State of North Carolina Driver License.

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 service 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 enlisted in the Regular Army for a period of 3 years on 11 June 1940.

4.  A War Department, The Adjutant General's Office, Washington, DC, letter, dated 24 September 1945, informed the FSM's father that the Army had confirmed the FSM died in Baguio, Mountain Province, Philippine Islands, on
31 July 1942.  The FSM had previously been reported as missing in action (MIA).

5.  War Department, Report of Death, dated 27 September 1945, confirmed that the FSM's death occurred on 31 July 1942.  This document also shows the FSM had been in a beleaguered status from 8 December 1941 to and including 6 May 1942, and absent in an MIA status on and subsequent to 7 May 1942 and until such absence was terminated on 21 September 1945, when evidence considered sufficient to establish the fact of death was received by the Secretary of War.

6.  A Veterans Administration (VA) Form 3101, dated 30 September 1952, shows The Adjutant General of the Army confirmed the FSM's death occurred while a POW of the Japanese.  The cause of death was unknown.  This document also shows the FSM served with the Corps of Engineers and he was assigned to Company C, 803rd Engineer Battalion (Aviation), in the Middle Pacific at the time of his death.

7.  A review of the National Archives and Records Administration (NARA), World War II Honor List of Dead and Missing Army and Air Forces Personnel, shows the FSM's death was categorized as non-battle.

8.  A DA Form 1577 (Authorization for Issuance of Awards), dated 20 May 1985, shows the FSM was authorized the American Defense Service Medal, World War II Victory Medal, and Philippine Defense Ribbon.

9.  A DA Form 1577, dated 25 March 1988, shows the FSM was authorized the POW Medal.

10.  There is no evidence in the available military service records that shows the FSM was awarded the Purple Heart.

11.  The applicant provides copies of the following documents:

	a.  a Western Union telegram, dated 18 September 1950, that notified the FSM’s parents that their son’s remains were en route to the United States.

	b.  Three newspaper articles that reported the FSM arrived in the Philippine Islands in October 1941, he was listed in an MIA status in May 1942, and he was killed on 31 July 1942.

   c.  A two-page extract from the Dryden Town Historical Society that provides a biographical summary of the FSM's life.  It states that all U.S. forces on Luzon surrendered to the Japanese on 9 April 1942.  The FSM, along with other POWs were assembled and started on the Bataan Death March of more than 60 miles to Camp O'Donnell near Tarlac.  On 19 May 1943, a Soldier who was a POW at the same location as the FSM confirmed the FSM’s death and burial location.  Later, in January 1947, a U.S. Army detail recovered the bodies of four persons in the vicinity.

12.  A review of the FSM's available records reveals he may be authorized additional awards that are not shown in his military service records.

13.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register), dated 6 July 1961, lists the unit awards received by units and campaign participation of units serving in World War II.  This document shows that at the time of the FSM's assignment to Company C, 803rd Engineer Battalion (Aviation), the battalion was cited for award of the Presidential Unit Citation (formerly known as the Distinguished Unit Citation) for actions on
7 December 1941 to 10 May 1942 by Department of the Army General Orders (DAGO) 23, dated 1942, as amended by DAGO 46, dated 1948.

14.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.

	a.  The Bronze Star Medal may be awarded to Soldiers who participated in the Philippine Islands campaign between 7 December 1941 and 10 May 1942.  


Performance of duty must have been on the island of Luzon or the Harbor Defenses in Corregidor and Bataan.  Only Soldiers who were awarded the Distinguished Unit Citation (Presidential Unit Citation) may be awarded this decoration.

	b.  The Asiatic-Pacific Campaign Medal is awarded for service in the Asiatic-Pacific Theater of Operations between 7 December 1941 and 2 March 1946.  Qualifying service for this award includes permanent assignment in the theater, service in a passenger or a temporary duty status for 30 consecutive or 60 nonconsecutive days, or active combat against the enemy and award of a combat decoration or certificate by the commanding general of a corps or higher unit showing actual participation in combat.  One bronze service star is authorized for wear on the Asiatic-Pacific Campaign Medal for participation in each credited campaign.

15.  Army Regulation 600-45 (Decorations), which governed the award of Army decorations until 23 August 1951, 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.  In order to support awarding a member the Purple Heart, it is necessary to establish that the wound for which the award is being made required treatment by medical personnel and the medical treatment for the wound or injury received in action must have been made a matter of official record.

16.  Army Regulation 600-8-22 provides that for those who became POWs during World War II, the Korean War, and after 25 April 1962, the Purple Heart will be awarded to individuals wounded while prisoners of foreign forces, upon submission by the individual to HQDA of an affidavit that is supported by a statement from a witness, if this is possible.

17.  Department of the Army Pamphlet 671-2 (Unit Citation and Campaign Participation Credit Register), dated July 1961, shows World War II units that are authorized campaign participation credit.  This pamphlet shows that the unit to which the FSM was assigned to was credited with participating in the Philippine Islands campaign.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM's records should be corrected to show award of the Purple Heart because he was a POW during World War II and he died while in captivity.

2.  The available records show the FSM served with the Corps of Engineers and he was assigned to Company C, 803rd Engineer Battalion (Aviation), in the Middle Pacific in October 1941.  The FSM was:

   a.  in a beleaguered status from 8 December 1941 to 6 May 1942;
   
   b.  listed in an MIA status on and subsequent to 7 May 1942; and

   c.  reported to have died in Baguio, Mountain Province, Philippine Islands, while a prisoner of the Japanese on 31 July 1942.

	d.  The FSM was authorized the American Defense Service Medal, World War II Victory Medal, Philippine Defense Ribbon, and POW Medal.

3.  There is no evidence the FSM was awarded the Purple Heart.

	a.  The regulatory guidance, now in effect, provides for award of the Purple Heart for individuals who were wounded while prisoners of foreign forces.

	b.  The exact circumstances relating to the FSM's death are not known. However, it is clear that the FSM died while a POW of the Japanese in the Philippine Islands.  The evidence indicates he was among those Soldiers who were forced on the Bataan Death March.  It is reasonable to conclude that the FSM suffered physical hardship and harm at the hands of his captures while he was a POW.  It is also reasonable to conclude that this ultimately led to his death while he was in captivity.

	c.  Therefore, it would be appropriate to posthumously award the FSM the Purple Heart.

4.  The available records show the FSM qualified for award of the Asiatic-Pacific Campaign Medal.  It also shows he participated in one campaign phase.  Therefore, it would be appropriate to correct his records to show this service medal with one bronze service star.

5.  General orders awarded the FSM's battalion the Presidential Unit Citation. Therefore, it would be appropriate to correct his records to show this unit award.

6.  Based on award of the Presidential Unit Citation, it would also be appropriate to award the FSM the Bronze Star Medal.


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.  posthumously awarding the FSM the Purple Heart based on having died in captivity while a POW on 31 July 1942;

   b.  posthumously awarding the FSM the Bronze Star Medal for meritorious service from 7 December 1941 to 10 May 1942; and

   c.  issuing an appropriate document to show the FSM was awarded the Purple Heart, Bronze Star Medal, Prisoner of War Medal, American Defense Service Medal, Asiatic-Pacific Campaign Medal with one bronze service star, World War II Victory Medal, Philippine Defense Ribbon, and the Presidential Unit Citation (Army).



      _________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)                                         AR20090016647



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ABCMR Record of Proceedings (cont)                                         AR20090016647



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