IN THE CASE OF:	  

		BOARD DATE:	  8 September 2011

		DOCKET NUMBER:  AR20110001382 


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, in effect, award of the Purple Heart and correction of his WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) to show this award.

2.  The applicant states he should have been awarded the Purple Heart for the following reasons:

	a.  He was strafed by Japanese Zeros resulting in injury not requiring medical treatment.

	b.  He was a Prisoner of War (POW) and forced to endure the Bataan Death March resulting in great harm and injury.

	c.  He was moved from camp to camp and then taken aboard the Tottori Maru.

	d.  He was a POW for 42 months, suffered at the hands of the enemy, and was awarded an 80 percent (%) physical disability in 1945.

3.  The applicant provides:

* his WD AGO Form 53-55
* his Honorable Discharge Certificate
* his WD AGO Form 100 (Separation Qualification Record)
* 

* page 2 of General Order 240 showing award of the Silver Star
* a Service Record for Camp Number 276
* a letter from the Veterans Administration (VA), Regional Office, Detroit, MI, dated 19 December 1952
* a VA Insurance Form 357, dated 4 December 1945
* a Roster of Troops for Company B
* Western Union Telegrams, dated 25 June 1943; 27 August [no year indicated]; 4 October 1945; and 22 October 1945
* an undated article from an unknown source about the Tottori Maru
* a letter from President Truman to the members of the U.S. Armed Forces repatriated in October 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 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, the applicant has provided sufficient documents for the Board to conduct a fair and impartial review of this case.

3.  The applicant's WD AGO Form 53-55 shows in:

	a.  Item 3 (Grade) he attained the rank of sergeant (SGT) during his active service.

	b.  Item 6 (Organization) he was assigned to the 803rd Engineer Battalion (Aviation).


	c.  Item 33 (Decorations and Citations) he was awarded the:

* Silver Star
* Distinguished Unit Badge (now known as the Presidential Unit Citation)
* American Defense Ribbon (now known as the American Defense Service Medal)
* World War II Victory Medal
* Philippine Defense Ribbon
* Army Lapel Button

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

	e.  Item 36 (Service Outside Continental United States and Return) he was assigned in the Pacific Theater of Operations (PTO) from 23 October 1941 until his return to the United States on 25 October 1945.

4.  The Service Record for Camp Number 276 indicates in the Remarks section the entry "Wounds:  None."

5.  The Western Union Telegrams indicate the applicant had been a POW of the Japanese government during 1943 to his repatriation in 1945.

6.  The article discussing the Tottori Maru described the horrendous conditions on board the ship and the journey from Malabalay, Mindanao on 1 October 1942 to their arrival in Tokyo Area Camp Number 2B on 12 November 1942.

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

	a.  Provides that the Purple Heart is awarded for a wound sustained 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.

	b.  Provides 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 after 5 April 1917.  The Prisoner of War Medal is to be issued only to those U.S. military personnel and other personnel granted creditable U.S. military service who were taken prisoner and held captive:

* while engaged in an action against an enemy of the United States
* while engaged in military operations involving conflict with an opposing foreign force
* while serving with friendly forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party
* by foreign armed forces that are hostile to the United States, under circumstances which the Secretary concerned finds to have been comparable to those under which persons have generally been held captive by enemy armed forces during periods of armed conflict

8.  Section 521a of the National Defense Authorization Act 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 he should have been awarded the Purple Heart because he was strafed by Japanese planes and suffered at the hands of the enemy as a POW.

2.  The applicant states the wounds he received when strafed by Japanese planes did not require medical treatment.  There is no evidence of record and he did not provide any evidence to show he was wounded.  Even if he had such evidence, he would not qualify for the Purple Heart as he states he did not receive or require any medical treatment.

3.  Unfortunately, the suffering he endured during the long days of his march from Bataan does not qualify for award of the Purple Heart.  In order to qualify for this award the injuries and wounds must have resulted from deliberate acts of aggression by the enemy, such as beatings or shootings.  Illness resulting from the harshness of the journey also does not meet the requirements for award of the Purple Heart.

4.  Regrettably, in view of the foregoing there is no basis for granting the applicant's requested relief.

5.  Evidence shows that the applicant’s records contain an administrative error which does not require action by the Board.  Therefore, administrative correction 


of the applicant’s records will be accomplished by the Army Review Boards Agency (ARBA) Case Management Division (CMD) as outlined by the Board in paragraph 3 of the BOARD DETERMINATION/RECOMMENDATION section below.

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 applicant in service to our 
Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

3.  The Board determined that an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the ARBA CMD administratively correct the records of the individual concerned to show award of the Prisoner of War Medal.



      ____________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)                                         AR20110001382



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ABCMR Record of Proceedings (cont)                                         AR20110001382



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