IN THE CASE OF:	  

		BOARD DATE:	  18 January 2011

		DOCKET NUMBER:  AR20100028691 


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, through her Member of Congress, the records of her father, a former service member (FSM), be corrected to show award of the Purple Heart.

2.  The applicant states that the FSM suffered injuries while being held captive in a prisoner of war (POW) camp in Formosa during World War II.  According to the 1996 National Defense Authorization Act (NADA), he should be entitled to award of the Purple Heart.  The FSM, a decorated veteran, dedicated his life to the military.  He was awarded two awards of the Bronze Star Medal by General of the Army Douglas McArthur for bravery under fire in addition to multiple other awards and decorations.  Her father was held captive in a POW camp as a slave laborer and suffered from several diseases, multiple beatings, and trauma caused during his time in captivity.  He was working in a sugar mill that had previously been bombed causing it to be unstable.  Several large bags of sugar fell, many landing on him and causing multiple severe injuries.  He was seen by an American doctor who was also a POW.  

3.  The applicant's Member of Congress states the applicant was taken as a POW from 9 February 1942 to 16 September 1945 during which he suffered from malaria, yellow jaundice, pellagra, beri beri, amoebic dysentery, and malnutrition. He thorough examination of his Department of Veterans Affairs (VA) rating reveals a number of service connected disabilities, which he received disabilities for due to his time as a POW.  He was a slave laborer working in a sugar factory in Formosa and incurred several debilitating injuries while working.  X-rays by the VA revealed a degenerative disc disease of the spine caused by multiple beatings to the thoracic area as a POW, as well as cervical disease in the cervical spine, osteoarthritis, and degenerative disease of the feet, attributed to trauma incurred while a POW.  Other injuries included burns, dislocated limbs, and exposure to freezing conditions resulting from frostbite of limbs. 

4.  The applicant provides:

* WD AGO Form 53-55 (Enlisted Record and Report of Separation)
* DD Form 215 (Correction to DD Form 214 (Certificate of Release or Discharge from Active Duty))
* U.S. Air Force (USAF) WD AGO Form 53 and DD Form 214(Report of Separation from the Armed Forces of the United States)
* VA Form 8-1520 (Decision of Disability Insurance Claims)
* Two Internet printouts of POW Roster
* Self-authored POW timelines
* Letter from FSM son to his Member of Congress
* Statement from the FSM's daughter
* Multiple letters and/or casualty messages from the War Department regarding his POW status
* Various Japanese records
* VA rating decision
* Enlistment Record
* Report of Physical Examination of Enlisted Personnel prior to Discharge, Release from Active Duty, or Retirement
* Retirement Order

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 records, including his WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge), 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's WD AGO Form 53-55 shows he enlisted in the Regular Army on 3 October 1940.  This form also shows at the time of his separation, his military occupational specialty (MOS) was not available but he appears to have held a medical specialty and he was assigned to the Base Hospital Unit, Bataan, Philippines.

4.  His WD AGO Form 53-55 shows he departed the continental United States (CONUS) on 14 October 1941 and arrived in the Asiatic-Pacific Theater of Operations on 23 October 1941.  He departed the Asiatic-Pacific Theater of Operations on 12 October 19455 and arrived back in CONUS on 28 October 1945.

5.  He completed 1 year, 3 months, and 4 days of continental service and 4 years and 24 days of foreign service.  He was honorably separated on 28 January 1946.

6.  Item 31 (Military Qualifications and Date) of his WD AGO Form 53-55 shows he was awarded the Combat Medical Badge.

7.  Item 32 (Battles and Campaigns) of his WD AGO Form 53-55 shows he participated in the Philippines Island and Luzon campaigns during his service in WWII.

8.  Item 33 (Decorations and Citations) of his WD AGO Form 53-55 shows the American Defense Service Medal, American Campaign Medal, Asiatic-Pacific Campaign Medal, Philippine Defense Medal, Army Good Conduct Medal, and World War II Victory Medal.

9.  Item 34 (Wounds Received in Action) shows the entry "None." 

10.  Item 55 (Remarks) shows the entry "Discharged as Temporary Staff Sergeant AUS (Army of the United States) Permanent Private Regular Army, Separated from the Service on a Partial Service Record and Affidavit from the Soldier." 



11.  The available records also show he enlisted in the RA on 28 January 1946.  His WD AGO Form 53 for this period of service shows at the time of his separation, he held MOS 629 (Student).  He was honorably separated on 28 January 1949.  

12.  Subsequent to his separation from the Army, he enlisted in and served in the USAF through multiple reenlistments and ultimately retired in the rank of Senior Master Sergeant on 18 November 1966.

13.  On 25 February 2004, he was issued a DD Form 215 that added the POW Medal.

14.  There is no indication in the FSM's reconstructed records that he was wounded in action and/or treated for a wound or injury resulting from hostile action.  

15.  The applicant submitted the following documents

	a.  Undated letter from the FSM to his Member of Congress wherein he stated that he was held in a Japanese POW camp on a sugar mill in Formosa as a slave labor.  He was injured when tons of sugar sacks fell on him.  He was injured and could not walk.  Other POWs carried him back to camp where he was treated by an American doctor.  He was unable to work for several weeks.  He was eventually able to walk.  He believes as a result of this injury, he suffered permanent damage including traumatic osteoarthritis.  He believes this was a war injury caused by the enemy at the time. 

	b.  Letter, dated 22 February 2010, from the FSM's daughter wherein she states despite having spent 3 1/2 years as a POW, one would be hard pressed to find a more proud American than he is.  

	c.  Letters, dated 18 May 1942 and 10 February 1943, from the Adjutant General to the FSM's parents, they were notified that the FSM was serving in the Philippine Islands at the time and no information was available regarding his whereabouts.  He was presumably missing in action on 7 May 1942. 

	d.  Letter and Casualty Message, dated 22 February 1943, from the Adjutant General to the FSM's parents confirming the FSM, who held a Medical Corps specialty and the rank of private first class was confirmed as a POW of the Japanese Government in the Philippine Islands. 


	e.  Sworn statement, dated 16 February 1948, at the Air Force Station Hospital, Fort Francis E. warren, Cheyenne, WY, from the FSM wherein he stated that he was a POW from 9 April 1942 to on or about 16 September 1945.  He suffered from malaria, yellow jaundice, pellagra, beri beri, amoebic dysentery, and general acute mal-nutrition.  He received medical treatment during his captivity from American doctors. 

	f.  VA Form 8-1520, dated 13 May 1948 wherein the FSM claimed disability insurance.  This form shows the FSM was taken prisoner by the Japanese on 9 April 1942 and he was liberated on 16 September 1945.  During captivity, he suffered from malaria, yellow jaundice, pellagra, beri beri, amoebic dysentery, and general acute mal-nutrition.  Subsequent to liberation, he was hospitalized to 21 December 1945.  He was discharged on 28 January 1946 and reenlisted the next day.

	g.  Various foreign documents in Japanese with English interpretation that show the FSM was captured on 9 April 1942.  He was liberated on or about 16 September 1945.

	h.  VA rating decision, dated 28 March 2002 that increased or awarded him service-connected disability compensation for:

* Post-Traumatic Stress Disorder
* Irritable Bowel Syndrome
* Residual of lumbar injury with lumbar disc disease
* Sinusitis
* Allergic rhinitis
* Residual of right hip injury
* Bronchial asthma
* Residual of thoracic injury
* Hearing impairment

16.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Prisoner of War Medal.  The regulation states that the Prisoner of War Medal was authorized on 8 November 1985 and is awarded to individuals who in past armed conflicts were taken prisoner or held captive.

17.  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.

18.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, 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 must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record:

	a.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:  injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and/or concussion injuries caused as a result of enemy generated explosions.

	b.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows:  frostbite or trench foot injuries; heat stroke; food poisoning not caused by enemy agents; chemical, biological, or nuclear agents not released by the enemy; battle fatigue; disease not directly caused by enemy agents; accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; self-inflicted wounds, except when in the heat of battle and not involving gross negligence; post-traumatic stress disorders; and/or jump injuries not caused by enemy action.

19.  Section 521a of the NDAA of 1996, authorized award of the Purple Heart to any former prisoner of war who was wounded before 25 April 1962 while held as a prisoner of war or while being taken captive, in the same manner as a former prisoner of war who was wounded on or after that date.  Section 521b specifically stated that award of the Purple Heart for prisoners of war 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her father should be awarded the Purple Heart.

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

3.  The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

4.  The FSM's POW status is not in question.  Additionally, his illnesses of malaria, yellow jaundice, pellagra, beri beri, amoebic dysentery, and general acute mal-nutrition, are also not in question.  However, natural illnesses or disease, regardless where they occur, in combat or during captivity, that are not directly caused by enemy agents do not qualify for award of the Purple Heart.  Similarly, other accidental wounding or injury not related to or caused by enemy action, such as the accidental collapse of bags of sugar, clearly do not justify award of the Purple Heart, regardless where it occurred. 

5.  Although it is reasonable to presume the FSM may have been mistreated or beaten by his captors and was possibly injured during captivity, regrettably, absent evidence which conclusively shows that the FSM sustained wounds or injuries as a result of enemy action (captors), 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.

6.  The VA's award of service-connected disability compensation for various illnesses is noted.  However, the VA's analysis is based on what the FSM claimed in his application.  Although the VA's analysis may be used to corroborate other official documents, in the FSM's case there are no other documents that conclusively show, aside from the diseases he indicated in his sworn statement, dated 16 February 1948, at the Air Force Station Hospital, nowhere in his reconstructed records is there conclusive evidence that he was injured as a result of his captors' actions while in captivity, treated for his injuries, and/or his treatment had been made a matter of official record.

7.  Regrettably, absent evidence which conclusively shows that the FSM sustained wounds or injuries as a result of hostile action while in captivity, 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 an insufficient basis for awarding the Purple Heart to the applicant.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  ____X___  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _ 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)                                         AR20100028691



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ABCMR Record of Proceedings (cont)                                         AR20100028691



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