IN THE CASE OF:	  

		BOARD DATE:	  1 July 2010

		DOCKET NUMBER:  AR20090021789 


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 that the records of her late husband, a deceased former service member (FSM), be corrected to show he was awarded the Purple Heart.

2.  The applicant states the FSM was shot in the heel when he was a Prisoner of War (POW).

3.  The applicant provides the FSM's death certificate and his DD Form 214 (Report of Separation from Active Duty).

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 Board requested the FSM's military records from the Repository in St. Louis, MO, but without success.  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 in that fire.  However, there are sufficient records to make a fair, impartial and equitable determination in this case.

3.  The FSM enlisted in the Regular Army on 25 January 1949, he was promoted to sergeant, and honorably released from active duty on 17 October 1953.  

4.  The DD Form 214 the FSM was issued shows he was awarded the Combat Infantryman Badge, Good Conduct Medal, Korean Service Medal with 3 bronze service stars, National Defense Service Medal, and United Nations Service Medal.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) contains the entry "None."

5.  The only military record available besides the FSM's DD Form 214 is a Veterans Administration Adjudication Form 545 (Summary of Record of Active Service Copied from Discharge Certificate for Use ONLY with Claims Submitted to the Veterans Administration), dated 17 December 1953.  On this form the space provided for wounds received in service shows "Shrapnel wound in left heel, snake bite on right shin at time I was Korean prisoner."

6.  The Korean War Casualty List shows that the FSM's duty status had been changed to Missing In Action (MIA) in 1951 while in North Korea.

7.  The Korean War Data File of American POW's, 1950 – 1953, shows the FSM was a POW at Ch'ang-Song, North Korea.

8.  During World War II and the Korean War the Purple Heart was not awarded to Soldiers who had been injured while in captivity as a result of enemy maltreatment or brutality.  These injuries were considered to be the result of war crimes and not the result of a legal action of war.  War Department policy, at that time, required that wounds must have been received in action against the enemy or, in other words, incurred in actual combat.  Executive Order 11016, dated     25 April 1962, provided more latitude with respect to award of the Purple Heart to POWs, as well as the authority to award the decoration to wounded Soldiers even in the absence of a formal declaration of war.  The issue as to whether this change in policy would be implemented retroactively to POW's from World War I, World War II, and the Korean War has been considered several times.  However, it was decided that the change in policy would not be retroactively implemented.  It was concluded that it would be inappropriate for the Department of Defense to retroactively change the standards and, in effect, countermand the decisions of the past leadership.  However, as part of the National Defense Authorization Act of 1996 Congress 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.

9.  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.  Past conflict in this instance means only World War I, World War II, the Korean War, and the Vietnam War.  Hostages of terrorists and persons held by governments with which the United States is not engaged in armed conflict are not eligible.

DISCUSSION AND CONCLUSIONS:

1.  Since the FSM's records are not available for the Board to review, there is no concrete evidence to prove the FSM was wounded while a POW.

2.  However, The Korean War Casualty List shows the FSM was MIA and the Korean War Data File of American POW's, 1950 – 1953, shows the FSM was a POW.

3.  In addition, the FSM completed a form with the Veterans Administration 2 months after his release from active duty stating that he received a shrapnel wound to his left heel when he was a Korean POW.  There would have been no reason for the FSM to say this if it had not been true.  At that time a Soldier could not be awarded the Purple Heart for wounds incurred while a POW and the POW Medal did not yet exist.  As such, the FSM's statement is accepted as true.

4.  In view of the foregoing, it would now be appropriate to award the FSM the Purple Heart for wounds incurred while a POW in Korea and to award him the POW Medal and amend his DD Form 214 to show these awards.

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 Purple Heart for wounds received during the Korean War and the POW Medal; and

	b.  adding the Purple Heart and POW Medal to his DD Form 214 and providing the applicant a document that shows these corrections.




      _______ _   _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)                                         AR20090021789



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ABCMR Record of Proceedings (cont)                                         AR20090021789



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