IN THE CASE OF:	  

		BOARD DATE:	  10 November 2011

		DOCKET NUMBER:  AR20110012406 


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 widow of a deceased former service member (FSM), requests correction of the FSM's records to show his Prisoner of War (POW) status during World War II (WWII).

2.  The applicant states the FSM was wounded and taken into captivity.  Other members of the squad who were also taken into captivity at the time received POW status; however, the FSM's records do not show his POW status.

3.  The applicant provides copies of two statements from the FSM, a POW Medal application, and a statement from the FSM's squad leader along with copies of his military service records.

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 service 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 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.  A WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) shows the FSM was inducted and entered active duty in the Army of the United States on 29 March 1944 and he was honorably discharged on 22 November 1945 based on a Certificate of Disability for Discharge.  He completed 1 year, 4 months, and 3 days of continental service; 3 months and 21 days of foreign service; and 1 year, 7 months, and 24 days of longevity for pay purposes.  It shows in:

	a.  item 6 (Organization):  Company I, 310th Infantry, 78th Division;

	b.  item 30 (Military Occupational Specialty and Number):  Rifleman, 745;

	c.  item 31 (Military Qualification and Date):  Combat Infantryman Badge (Headquarters, 310th Infantry Regiment, General Orders Number 21, dated
27 March 1945);

	d.  item 32 (Battles and Campaigns):  Rhineland and Central Europe campaigns;

	e.  item 33 (Decorations and Citations):  Purple Heart, American Campaign Medal, World War II Victory Medal, and European-African-Middle Eastern Campaign Medal;

	f.  item 34 (Wounds Received in Action):  9 April 1945; and

	g.  item 36 (Service Outside Continental United States and Return):  departed the United States (US) on 10 February 1945, arrived in the European Theater of Operations (ETO) on 18 February 1945, departed the ETO on 24 May 1945, and arrived in the US on 30 May 1945.

4.  Information from U.S. Army (USA), Office of the Surgeon General (OTSG), Hospitalization Admission Cards for the Year 1945, shows the FSM was admitted to an Army Medical Treatment Facility on 9 April 1945 and he received treatment for a wound to his foot caused by artillery shell fragments while he was in combat and serving in the ETO.  It also shows the medical treatment (closure of the wound) was delayed.
5.  A review of the National Archives and Records Administration (NARA), WWII POW Data File (7 December 1941-19 November 1946), failed to confirm the FSM's POW status.  

6.  In support of the application, the applicant provides the following documents:

	a.  Two VA Forms 21-4138 (Statement in Support of Claim), dated 24 August 2007 and 7 May 2009, that the FSM submitted to the Department of Veterans Affairs.  The FSM described the combat action he was involved in on 7 April 1945 as his platoon advanced to the village of Steeg.

	 	(1)  He stated that he, along with three or four other Soldiers were cut off from the platoon, they took refuge in a pig pen, and it was hit by a tank shell.  All of the Soldiers were wounded and one was killed in action.  They moved to a nearby house where they were captured by German soldiers and held for 3 days.

	 	(2)  The Germans set fire to the house, but the FSM and the other Soldiers managed to get out.  They were rescued on the fourth day by U.S. Soldiers of Company K and transported to a field hospital.

	 	(3)  He added that the date of his wound that is recorded on his discharge shows 9 April 1945, which is incorrect, and it does not show he was a POW.

	b.  A DD Form 2510 (POW Medal Application/Information), dated 26 July 1990, that shows the FSM stated he was wounded on 6 April 1945, taken prisoner the same day, and held in a house for 3 days until U.S. Soldiers recaptured the village. 

	c.  An undated statement by Donald I. H----, who states he was a staff sergeant in Company I, 310th Infantry, 78th Division, and in charge of a 12-man rifle squad in April 1945.

	 	(1)  On 7 April 1944 [sic] the company was attacking the small town of Steeg.  He and three other Soldiers were cut off from the unit by advancing German tanks.  Three of them (including himself and the FSM) were wounded and one Soldier was killed in action.  

	 	(2)  He states the two other wounded Soldiers moved him to a nearby house where they were captured by German soldiers and held for 3 days.  They were freed by U.S. Soldiers on the evening of 9 April 1945.

	d.  WD AGO 53-55, unit award request form, WD AGO Form 100 (Separation Qualification Record), and Disposition [Medical] Board Proceedings pertaining to (then) SSG Donald I. H---- show he served as an infantry squad leader while assigned to Company I, 310th Infantry, 78th Division in Germany and he:

* was wounded on 7 April 1945 in Germany
* taken prisoner by German soldiers
* did not receive first-aid for two (2) days
* was rescued by U.S. Forces on 9 April 1945

7.  Army Regulation 600-68 (Good Conduct Medal), in effect at the time, stated the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940 and, after 7 December 1941, completed 1 year of continuous active Federal military service while the United States was at war.  The award would not be made to an enlisted man whose records, during the required period of service, disclosed a conviction by any court-martial, or to one whose character or efficiency was rated below "excellent."

8.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register), dated 6 July 1961, lists the unit awards received by units and campaign participation of units serving in WWII.  This document shows that while the FSM was assigned to Company I [3rd Battalion], 310th Infantry, the battalion was awarded the Presidential Unit Citation for actions during the period 1-15 March 1945 by War Department General Orders Number 100 (1945).

9.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.

   a.  The Bronze Star Medal is awarded for heroism and for meritorious achievement or service in military operations against an armed enemy.  The Bronze Star Medal is authorized for each individual who was cited in orders or awarded a certificate for exemplary conduct in ground combat between 
7 December 1941 and 2 September 1945, or whose achievement or service during that period was confirmed by documents executed prior to 1 July 1947.  An award of the Combat Infantryman Badge or the Combat Medical Badge is considered to be a citation in orders.  This means, in effect, that the Bronze Star Medal is to be awarded to individuals who were authorized either badge for service during WWII.

	b.  The POW Medal was authorized on 8 November 1985 and 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 while engaged in an action against an enemy of the US.  This regulation also states that personnel officially classified as missing in action are not eligible for award of the POW Medal.  The POW Medal will only be awarded when the individual's POW status has been officially confirmed and recognized as such by the Department of the Army (DA).

10.  War Department Technical Manual (TM) 12-235 (Enlisted Personnel - Discharge and Release from Active Duty), dated January 1945, provides uniform procedures in discharging or releasing personnel from active duty.  The instructions for completing the WD AGO Form 53-55 states that the form is completed from the Service Record, Soldier's Qualification Card, Immunization Register, and information ascertained by interview with the dischargee.  There are no provisions for entering a Soldiers status as a POW on the document.

11.  Army Regulation 635-5 (Personnel Separations - Separation Documents), currently in effect, prescribes policies and procedures regarding separation documents.  The instructions for the "Remarks" block show for a Soldier with Prisoner of War documentation, enter "Prisoner of War, (Unit of Assignment/ Country), (date of capture and release date)."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM's records should be corrected to show he was a POW during WWII.

2.  The evidence of record shows the FSM, his squad leader, and another Soldier were wounded in action (WIA) in Germany and subsequently taken prisoner by German soldiers.

	a.  The FSM's squad leader's records show he was WIA on 7 April 1945 and he was in a POW status from 7 - 9 April 1945; and

   b.  The FSM's WD AGO Form 53-55 shows he was WIA on 9 April 1945; however, USA OTSG Hospital Admission Cards show his treatment was delayed and he was admitted for medical treatment on 9 April 1945.

   c.  Thus, it is concluded the applicant was actually WIA on 7 April 1945.

3.  There is no evidence the FSM was listed in a POW status or that he was awarded the POW Medal.  However, based on the evidence of record and the statement of the FSM's squad leader, it would be appropriate to correct the FSM's WD AGO Form 53-55 to show his POW status from 7 - 9 April 1945 and award of the POW Medal.

4.  The FSM was awarded the Combat Infantryman Badge for exemplary conduct in action against the enemy during WWII.  An award of the Combat Infantryman Badge is considered to be a citation in orders.  This means that the Bronze Star Medal is to be awarded to individuals who were authorized the Combat Infantryman Badge for service during WWII.  Therefore, it would be appropriate to correct the FSM's records to show award of the Bronze Star Medal.

5.  The applicant completed 1 year, 7 months, and 24 days of honorable active service with no lost time.  It appears he met the eligibility criteria for the first award of the Army Good Conduct Medal from 29 March 1944 to 22 November 1945.

6.  General orders awarded the FSM's battalion the Presidential Unit Citation. 

7.  In view of the foregoing, the FSM's records should be corrected as recommended below.

BOARD VOTE:

____X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  issuing orders and a DA Form 4980-5 (Bronze Star Medal Certificate) awarding the FSM the Bronze Star Medal for meritorious achievement for exemplary conduct in ground combat during the period 18 February 1945 to
7 April 1945;

   b.  issuing orders awarding the FSM the Army Good Conduct Medal
(1st Award) for exemplary conduct, efficiency, and fidelity during the period
29 March 1944 to 22 November 1945; and

   c.  correcting the FSM's WD AGO Form 53-55 by:
   
    	(1)  adding to item 33 the Bronze Star Medal, Army Good Conduct Medal (1st Award), Prisoner of War Medal, and Presidential Unit Citation;
   
    	(2)  deleting from item 34 the entry "9 Apr 45" and adding the entry "Germany, 7 April 1945"; and
   
    	(3)  adding to item 55 (Remarks) the entry "Prisoner of War, Company I, 310th Infantry, 78th Division/Germany, 7 - 9 April 1945."
   
2.  The Board wants the applicant and all others to know that the sacrifices the FSM made in service to the United States during World War II are deeply appreciated.  The applicant and all Americans should be justifiably proud of the FSM's 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)                                         AR20110012406



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ABCMR Record of Proceedings (cont)                                         AR20110012406



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