IN THE CASE OF:	  

		BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20090021999 


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 correction of his WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) to show he was a prisoner of war (POW).  He also requests award of the POW Medal and the Purple Heart.

2.  The applicant states he was in a POW status from 1 December 1944 to 1 June 1945, but there is no indication that he was a POW during his service in World War II (WWII).

3.  The applicant provides copies of the following documents:

* his WD AGO Form 53-55, dated 27 November 1945
* his Certification of Military Service, dated 2 December 2009
* his 17 January 1945 Combat Infantryman Badge orders
* a DD Form 2510 (POW Medal Application/Information), dated 6 July 1989
* his DSS Form 221 (Report of Physical Examination and Induction), dated 27 May 1944
* a postal telegraph message, dated 14 February 1945
* a letter to his mother from The Adjutant General, dated 15 February 1945

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 applicant's records show he was inducted into Army of the United States and entered active duty at Fort Bragg, NC, on 27 May 1944.  He was trained in and held military occupational specialty 745 (Automatic Rifleman) and he was assigned to Company A, 242nd Infantry.

3.  He departed the continental United States on 25 November 1944 and arrived in the European theater of operations on 8 December 1944.  However, on 9 January 1945 during combat operations in France, his entire company position was overrun during an attack by German Forces.

4.  On 7 February 1945, The Adjutant General sent a casualty telegram to the applicant's mother notifying her that he was reported in a missing in action (MIA) status since 9 January 1945.

5.  On 15 February 1945, The Adjutant General confirmed the recent telegram by letter to his mother informing her that her son [the applicant] was reported in an MIA status in France since 9 January 1945.

6.  On 27 February 1945, a Battle Casualty Report was initiated to report the applicant's official status as MIA effective 9 January 1945.

7.  On 24 May 1945, a Battle Casualty Report was initiated to report the applicant's status as returned to military control effective 24 April 1945 subsequent to the liberation of Paris.

8.  He completed 11 months and 13 days of continental service and 6 months and 18 days of foreign service.  He was honorably discharged on 27 November 1945.  His WD AGO Form 53-55 shows the following entries:

* item 31 (Military Qualifications and Date (i.e., infantry, aviation, and marksmanship badges, etc.)) shows the Combat Infantryman Badge and the Marksman Marksmanship Qualification Badge with Rifle Bar
* item 32 (Battles and Campaigns) does not show participation in any campaigns
* item 33 (Decorations and Citations) shows he was awarded the Army Good Conduct Medal, European-African-Middle Eastern Campaign Medal, and WWII Victory Medal
* item 34 (Wounds Received in Action) is not legible.  However, it appears that it does not list a combat injury/wound or date/place of an injury/wound

9.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states that for a Soldier with POW documentation, enter "PRISONER OF WAR, (UNIT OF ASSIGNMENT/
COUNTRY) (DATE OF CAPTURE AND RELEASE DATE)."

10.  Army Regulation 600-8-22 (Military Awards) provides for the following awards:

	a.  The POW Medal is authorized for any person who, while serving in any capacity with the U.S. Armed Forces, was taken prisoner and held captive after 5 April 1917.

	b.  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.

	c.  The European-African-Middle Eastern Campaign Medal is awarded for service within the European African-Middle Eastern theater between 7 December 1941 and 8 November 1945.  The regulation also authorizes a bronze service star based on qualifying service for each campaign listed in appendix B of this regulation or listed in item 32 of the WD AGO Form 53-55.  Authorized bronze service stars will be worn on the appropriate campaign or service medal including the European-African-Middle Eastern Campaign Medal.  If no specific campaigns are listed in item 32, the Ground Combat - European-African-Middle Eastern Theater (7 December 1941 to 2 September 1945) is the default campaign.

	d.  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, and the medical treatment must have been made a matter of official record.  For those who became POW's during WWII, the Korean War, and before 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 the Department of the U.S. Army of an affidavit that is supported by a statement from a witness, if this is possible.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected to show his POW status.

2.  The evidence of record shows he was reported in an MIA status on 9 January 1945 when his company position was overrun by enemy forces in France.  He was liberated and returned to military control on 24 April 1945.  Therefore, he is entitled to award of the POW Medal and correction of his WD AGO Form 53-55 to show this award and his POW status.

3.  The evidence of record shows he was awarded the Combat Infantryman Badge.  He is therefore 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.

4.  The evidence of record shows he participated in at least one campaign during his service in WWII and is therefore entitled to a bronze service star to be affixed to his already-awarded European-African-Middle Eastern Campaign Medal.

5.  With respect to the Purple Heart, the Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather an individual is entitled to it upon meeting a specific criteria.  When contemplating an award of this decoration, the key issue that must be taken into consideration is the degree to which the enemy caused the injury.  The fact that a proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but it is not the sole justification for award.

6.  In this case, there are no general orders that show he was awarded the Purple Heart and there is no evidence in his reconstructed records that show he was wounded or injured as a result of hostile action or treated for such wounds.  Although it is reasonable to presume he may have been beaten by his captors and was possibly injured during captivity; regrettably, absent evidence which conclusively shows he sustained wounds or injuries as a result of hostile action, and that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is insufficient basis for awarding the Purple Heart to the applicant in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ____x____  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  adding to his WD AGO Form 53-55 the Bronze Star Medal, Prisoner of War Medal, and a bronze service star to be affixed to his already-awarded European-African-Middle Eastern Campaign Medal and

	b.  adding to item 38 (Remarks) of his WD AGO Form 53-55 the entry "PRISONER OF WAR: COMPANY A, 242ND INFANTRY; FRANCE, 9 JANUARY 1945 TO 24 APRIL 1945."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the Purple Heart.



      ____________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)                                         AR20090021999



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ABCMR Record of Proceedings (cont)                                         AR20090021999



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