IN THE CASE OF:	  

		BOARD DATE:	  13 April 2011

		DOCKET NUMBER:  AR20100024339 


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 reconsideration of the Board's denial of his request for award of the Purple Heart through his Congressional representative.

2.  The applicant's Congressional representative states the applicant's entrance and exit physical examinations have been located along with medical records from the Department of Veterans Affairs (VA).  The Congressional representative continues that the applicant told a Congressional caseworker that he was hit in the head with the butt of a rifle during the Bataan Death March.

3.  The Congressional representative concludes by saying the fact that the applicant did not have a scar noted on his entrance physical examination and he did have a scar noted on his exit physical examination shows the scar occurred while the applicant was a prisoner of war (POW).

4.  The applicant provides through his elected representative:

* his entrance physical examination
* his WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge Release from Active Duty or Retirement)
* a VA Form 526 (Veterans Application for Pension or Compensation for Disability Resulting from Active Military or Naval Service)
* a VA Form 10-2614 (Clinical Record – Final Summary), dated 26 May 1947
* a special neuropsychiatric examination report, dated 30 October 1946
* letter from the National Archives and Records Administration, dated 16 April 2010

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070010732 on 3 January 2008.

2.  The applicant'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 applicant'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 applicant enlisted in the Regular Army on 14 June 1941.  He served in the Asiatic-Pacific theater of operations from 1 August 1941 through 7 October 1945 and was honorably discharged on 6 July 1946.

4.  The applicant's WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge) shows the American Defense Service Medal with one bronze service star, the Asiatic-Pacific Campaign Medal with one bronze service star, the Philippine Defense Service Medal with one bronze service star, the Army Good Conduct Medal, the World War II Victory Medal, and the Meritorious Unit Commendation as authorized awards.  Item 34 (Wounds Received in Action) of the applicant's WD AGO Form 53-55 shows the entry, "NONE."

5.  The World War II POW Data File shows the applicant was reported as a POW in Japan on 7 May 1942.  A DA Form 1577 (Authorization for Issuance of Awards), dated 27 July 1988, shows the applicant was issued the POW Medal for being held as a POW after being captured at Bataan from 9 April 1942 to 13 September 1945.

6.  In a 24 July 2003 letter to the applicant, the National Personnel Records Center informed him that documentation verifying that wounds or injuries occurred was required before the Purple Heart could be issued.  Such documentation could be statements from fellow POW's regarding wounds/injuries, his repatriation physical, VA files regarding captivity or wounds, or medical records documenting wounds/injuries.

7.  Army Regulation 600-8-22 (Military Awards) provides that 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 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.

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 POW's under section 521a 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.

9.  The applicant's entrance physical examination did not note any scars on the applicant.  His WD AGO Form 38 lists "Scar linear forehead."  However, the back page of this form was not provided to the Board.  The second page contained remarks for entries on the form.  The VA Form 526 shows the applicant applied for a VA disability rating for malaria, dysentery (amoebic), beri beri, pellagra, malnutrition, lick [sic] over right eye while a POW in the Philippines and Japan for 42 months, gall bladder trouble, and stomach trouble.  The VA Form 10-2614 reiterates the diseases suffered by the applicant while a POW and noted a "previously recorded small 3-centimeter scar over the left eyebrow."  The special neuropsychiatric examination shows the applicant reported "he received pretty rough treatment" while a POW.  The letter from the National Archives and Records Administration shows the POW affidavits in its possession did not have any information pertaining to the applicant.

DISCUSSION AND CONCLUSIONS:

1.  In order to award the applicant the Purple Heart, it must be shown that he was wounded while held as a POW or while being taken captive.  The diseases suffered by the applicant because of the deplorable conditions he was subjected to while a POW do not qualify him for a Purple Heart because they are not the result of a wound.

2.  The only indication of a wound is the 3-centimeter scar on his forehead.  While the scar wasn't noted on his entrance physical examination, it is apparent from the limited number of entries that the examination was quite cursory.  This 
would make sense in consideration of the vast number of people being inducted during this time.

3.  The applicant did not mention being wounded during his separation physical examination, so the Board is left with the interpretation of the applicant's statement on his VA rating request, "lick over right eye while POW in Philippines and Japan for 42 months."

4.  In this regard, the meaning of the term "lick" is unknown.  It may be thought to mean he was hit.  But it could mean something totally different.  However, even if the term was used to denote an injury, there is no indication whether the injury was the result of hostile action (being hit by a guard) or by an accident (e.g., tripping and falling in the POW compound).

5.  Unfortunately, without evidence to show the applicant's scar was caused by hostile action, there is insufficient evidence to grant the applicant's request for a Purple Heart.

BOARD VOTE:

____X____  ___X_____  __X______  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board believed that the applicant provided sufficient evidence to warrant award of the Purple Heart.  The Board believed it was plausible to believe the "lick" to his head was caused by the butt of a rifle from his Japanese captors and that any reasonable doubt should be resolved in his favor.

2.  Therefore, the Board determined that the overall merits of this case are sufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20070010732, dated 3 January 2008.  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 in April 1942;

     b.  amending his WD AGO Form 53-55 to add the Purple Heart; and

     c.  amending item 34 (Wounds Received in Action) of his WD AGO Form     53-55 to show he was wounded in April 1942 in the Philippines.



      __________XXX_______________
                 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)                                         AR20100024339



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ABCMR Record of Proceedings (cont)                                         AR20100024339



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