IN THE CASE OF:	  

		BOARD DATE:	    14 June 2011

		DOCKET NUMBER:  AR20100028524 


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 first cousin and next of kin of a deceased former service member (FSM), requests, by letter to the Secretary of Defense, reconsideration of his earlier request for a posthumous award of the Purple Heart to the FSM.

2.  The applicant states he began his research into this matter several years ago. He recently saw an article in a journal that under a new Pentagon policy, deceased Prisoners of War (POW) could be awarded the Purple Heart.  According to Title 10, U.S. Code, section 1129, any individual who died while in a POW status is entitled to award of the Purple Heart.  The FSM died on 7 June 1942.  Due to reduction of rations on Bataan, the Death March, Camp O'Donnell, and Cabanatuan, he had contracted malnutrition, dysentery, dengue fever, pneumonia, and angina.  He was by this time presumed dead.  He was carried to the burial ground (high water table) in a shelter-half and lowered into a pit.  The water in the pit caused him to sit up.  Upon seeing this, his captors (the Japanese) bludgeoned him and caused his death on or about 7 June 1942.  His dental records show he had a crushed maxilla.  The applicant adds that he was unable to interview any of the POWs who survived Cabanatuan; however, he has correspondence from the FSM's former commanding officer, captain GS, then a second lieutenant.  He has also consulted with the dentist at the Department of Veterans Affairs in Las Vegas, NV, who opined that the crushed/crashed maxilla caused by the bludgeoning of a rifle butt is more than sufficient to cause death.

3.  The applicant provides:

* two letters, dated May 1980 and April 1990, from a former officer
* a letter from the National Personnel Records Center
* two photocopies of photographs
* the FSM's dental records
* various letters to and from members of Congress
* a letter from the U.S. Army Human Resources Command
* QMC Form 1194 (Disinterment Directive)
* QMC Form 1193 (Receipt of Remains)
* OQMG Form 371 (Data on Remains Not Yet Recovered or Identified)

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 AR201000009524, on 2 September 2010.

2.  The applicant did not submit any new documentary evidence but he submitted a new argument which was not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  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 his 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.

4.  The FSM enlisted in the Regular Army on 22 February 1941 and he was trained in chemical warfare.  He arrived in the Philippines on an unknown date.  He was assigned to the 7th Chemical Company, 31st Infantry Regiment.

5.  He was held in a POW status from 7 May 1942 to 7 June 1942.  No other information is available regarding his captivity.

6.  His reconstructed record contains a WD QMC Form 1042 (Report of Interment), dated January 1948, that shows the FSM died on 7 June 1942.  The cause of death is listed as "malaria."  He was buried at the U.S. Air Force cemetery in Manila #2, Luzon, Philippine Islands.

7.  The Office of the Surgeon General Hospital Admissions Card also listed his cause of death in June 1942 as "malaria."


8.  The applicant submitted:

	a.  A letter, dated May 1980, from a former officer who chronicles his own military background and describes the challenges he and other Soldiers encountered at Bataan.  He states that he learned the Soldiers would be moved to Bataan on 21 December 1941.  A week or so later, the 3rd Chemical Company became part of the 7th Chemical Company which was later disbanded.  He was then reassigned to the 31st Infantry and it was at this point that he lost touch with the FSM.

	b.  A second letter, dated 1 April 1990, from the same individual states he met the FSM for the first time in May 1941 while with the 3rd Chemical Detachment.  The unit arrived in Manila in October 1941 at Clark Air Force Base.  The unit was assigned to the 31st Infantry at Bataan.  He was assigned to Company F while the FSM was assigned to Company H.  He then lost contact with the Soldiers, including the FSM.  Only 7 or 8 Soldiers remained alive after the end of the war.

9.  The Purple Heart was established by General George Washington at Newburgh, New York on 7 August 1782 during the Revolutionary War.  It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action.

10.  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 that the wound was the result of hostile action, the wound for which the award is made must have required treatment by medical personnel and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.  For those who became POWs during World War II, 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.

11.  The Office of the Under Secretary of Defense issued a memorandum, dated 
1 October 2008, to the Secretaries of the Military Departments and the Chairman of the Joint Chiefs of Staff providing guidance authorizing award of the Purple Heart to qualifying prisoners of war who are killed or die while in captivity as 

prisoners of war.  The Department advises that changing the eligibility criteria for the Purple Heart has merit for those prisoners of war, under circumstances establishing eligibility for the Prisoner of War Medal, who die while prisoners of war who are not otherwise eligible for the Purple Heart under the circumstances causing death.

12.  DOD Immediate Release Number 845-08, dated 6 October 2008, revised the Purple Heart eligibility criteria to allow for the award to prisoners of war who die in captivity.  The revised policy presumes that for service members who die in captivity as a qualifying prisoner of war, their death was the "result of enemy action" unless compelling evidence is presented to the contrary.  The revised policy allows retroactive award of the Purple Heart to qualifying prisoners of war since 7 December 1941.  Posthumous awards will be made to the deceased service member's representative, as designated by the Secretary of the Military Department concerned, upon application to that Military Department.

DISCUSSION AND CONCLUSIONS:

1.  The conditions under which the Japanese treated prisoners of war have been well documented throughout history.  Facing brutal conditions including disease, torture, and malnourishment, many prisoners died while in captivity.  It is clear the intent of the change of Purple Heart eligibility criteria policy was to recognize the sacrifice by these individuals.

2.  The FSM died from malaria while a prisoner of the Japanese.  It is reasonable to presume he contracted this condition due to the deplorable conditions under which he was forced to live by the Japanese.  In addition, this disease is not considered fatal when proper treatment is received.  Because the Japanese failed to provide any medical attention to the prisoners of war, the FSM died.  This clearly shows the FSM died in captivity as a result of enemy action.

3.  In view of the above, it would be appropriate to posthumously award the Purple Heart to the FSM for his death on 7 June 1942 while a prisoner of war.

BOARD VOTE:

__X_____  ___X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented was sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20080018982, dated 5 March 2009.  As a result, the Board recommends that all Department of the Army records of the FSM be corrected by posthumously awarding the Purple Heart to the FSM based on his death on 7 June 1942 while a prisoner of war.



      _________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)                                         AR20100028524



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100028524



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1