IN THE CASE OF:	  

		BOARD DATE:  21 August 2012

		DOCKET NUMBER:  AR20120000131 


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 the status of her uncle, a former service member (FSM), be changed from dropped from the rolls (DFR) of the Army to missing in action (MIA).

2.  The applicant states the FSM was a private first class (PFC) during World War II.  The Army said he left his unit, Company E, 180th Infantry Regiment, 45th Infantry Division, at Anzio, Italy, in an absent without leave (AWOL) status.  However, his status was later changed to desertion and he was DFR'd.  The applicant adds:

* there is no credible evidence showing the FSM went AWOL during the Battle of Anzio 
* the company commander listed many Soldiers as AWOL/DFR and they were later found; however, the FSM was never found

3.  The applicant and her aunt, the FSM's sister, are anxious to resolve the mystery of the FSM's fate.  They want his status changed to MIA so that his name may be added to the Anzio-Nettuno MIA Memorial Wall.

4.  The applicant provides two un-tabbed binders that contain the following:

* self-authored statements
* 1930 U.S. Federal Census Record extracts
* FSM's Pennsylvania Notification of Birth Registration
* FSM's Pennsylvania Certification of Birth
* the applicant's marriage certificate
* a 1943 National Service Life Insurance Policy and Application extract
* War Department Letter, dated 27 May 1944
* National Archives and Records Administration electronic database record retrieval on the FSM
* two letters from the FSM, dated 7 and 15 February 1944
* War Department Technical Manual 12-310 (Codes, Machine Records Unit), dated 28 March 1945, extracts
* Letter, dated 10 November 2011
* FSM's WD AGO Form 201 (Notice of Change of Address), dated 8 January 1944
* Segments from the writings of "M.R." (copyright 2008)
* Morning Reports for Company F, 309th Infantry Regiment and Company E, 180th Infantry Regiment, 45th Infantry Division for the period 1943 and 1944
* Yahoo internet search, dated 26 October 2011
* e-mail 
* three Declassified Reports of Operation, 180th Infantry Regiment, 45th Infantry Division for the period February through April 1944
* Declassified Report of Operation, 45th Infantry Division in Italy for the period 1 through 29 February 1944
* Enemy Offensive Map, dated 16 February 1944
* various Congressional Correspondence

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 official military personnel file (OMPF) is not available for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed the FSM's records were lost or destroyed in that fire.  However, the applicant provides sufficient documents to conduct a fair and impartial review of this case.  This case is being considered using Morning Reports and declassified reports for Company E, 180th Infantry Regiment, 45th Infantry Division, dated between 1943 and 1944. 

3.  The National Archives and Records Administration documents retrieval system shows the FSM enlisted in the U.S. Army on 11 March 1943.

4.  A Morning Report, dated 2 January 1944, shows the FSM and 18 other Soldiers were transferred from Company F, 309th Infantry Regiment to Fort George G. Meade, MD.

5.  A Morning Report, dated 16 February 1944, shows the FSM was one of 
23 replacements along with Private D.T.H. who joined Company E, 180th Infantry Regiment at Nettuno, Italy on 8 February 1944.  Morning Report entries thereafter show:

   a.  On 10 February 1944, the company marched from Nettuno to a position northwest of Padiglione, Italy to relieve a British unit.

   b.  Between 11 February and 16 March 1944, the company engaged in contact with the enemy, taking heavy casualties at times.

6.  The Record of Events as recorded on Morning Reports show Company E, 180th Infantry Regiment came off the front lines on 17 March 1944 and moved to a rest area to the south of Padiglione.  The unit remained in the rest area until on or about 20 April 1944.  The following exceptions are noted:

   a.  On 2 April 1944, "the company marched forward from the rest area to relieve Company L of their positions."  "Jerry had been throwing a few shells around our position.  The supply trucks came about the usual time with water and rations." 

   b.  On 3 April 1944, "the activity during the day was that Jerry threw several barrages of artillery around the road junction and through the company area.  The Jerries flew over and dropped several personal bombs.  Supplies and rations came in about the usual time."

   c.  On 4 April 1944, "Jerry threw several barrages around the road junction.  Jerry dropped several personal bombs.  The rations came in about the usual time."



   d.  On 5 April 1944, "Jerry threw barrages of heavy artillery around the company CP [command post] and through the platoon areas.  During the barrages a 105 Ammo Dump was blown up about 250 yards south of the company CP along the road bed.  The supply truck came in about the usual time with rations, water, gas and cigarettes."

e.  There are no Record of Events available showing activities for 6 or 7 April 1944.  However, Morning Reports that are available for those days show there were no changes.
   
7.  On 12 April 1944, and perhaps earlier, the company was once again in the rear for rest.

8.  A Morning Report, dated 18 April 1944, shows a status change from "duty to AWOL on 6 April 1944" the FSM and a Private D.T.H.  On 18 April 1944, Company E, 180th Infantry Regiment was south of Padiglione in a rest area. 

9.  A Morning Report, dated 20 May 1944, shows a status change from AWOL to DFR for the FSM and Private D.T.H.

10.  A Morning Report, dated 12 June 1944, shows a status change for Private D.T.H. from DFR to "duty 28 May 1944" and "duty to KIA (killed in action) on        1 June 1944."

11.  A review of the Company Morning Reports for Company E, 180th Infantry Regiment shows entries were often made several days after the actual event which generated the status change.  Additionally, Morning Report entries occasionally showed "unknown, to be entered at a later date." 

12.  An email from a Congressional Liaison Representative of the Casualty and Mortuary Affairs Operations Center, Headquarters, U.S. Army Human Resources Command (USAHRC), dated 26 October 2011, shows the following comment, "…thus far, the repatriation branch has not recovered any remains… indisputable evidence will be required (to change FSM's status)."

13.  On 24 January 2012, the USAHRC, Casualty and Mortuary Affairs Office determined a board of inquiry could not be held at their level due to the FSM's status of DFR. 

14.  The history of the 45th Infantry Division in World War II reveals the division departed the continental United States on or about 8 June 1943, arriving in North Africa on or about 25 June 1943.  The division entered combat in Sicily on or about 10 July 1943 with an assault landing at Scoglitti.  The division again made an assault landing in Italy at Agropoli and Paestrom on or about 10 September 1943, and fought on the Italian Peninsula through June 1944.  The division's last assault landing was at St. Maxime, in Southern France on 15 August 1944.

15.  Army Regulation 600-8-6 (Personnel Accounting and Strength Reporting) states active Army Soldiers will be reported as DFR when they remain AWOL for 30 consecutive days.  The DFR will be effective 0001 on the 31st day of AWOL.

16.  Army Regulation 600-8-1 (Army Casualty Program) prescribes the policies and mandated operating tasks, responsibilities, and procedures for casualty operations functions of the military personnel system.  The regulatory requires casualty reports to be submitted on individuals who are reported missing.  Chapter 13 states only the Secretary of the Army (SA) or his designee may make a status determination.  The SA delegates authority to USAHRC, The Adjutant General, for making status determinations.  The authority includes responsibility to make determinations of death, status, and essential facts and dates necessary to administer the Missing Service Personnel Act.  The SA's or his designee's determinations are conclusive on all departments and agencies of the United States.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a change of her uncle's military status to "MIA" was carefully considered.

2.  Although the applicant believes her uncle's body was lost on the battlefield insufficient evidence has been presented to confirm or deny this.  

3.  The sincerity of the applicant's contention and information contained in the Company Morning Reports are not in question.  However, the FSM's name is not listed on any casualty reports or other documents showing he was ever in an unknown status, or that he was ever reported MIA or a prisoner of war (POW).

4.  The records show the FSM joined his unit on 8 February 1944 and he was at the front lines from 10 February through 16 March 1944, during which time he saw sporadic heavy fighting and the unit took heavy casualties.  On 17 March 1944, the unit was rotated to the rear for rest through about 20 April 1944.  The Morning Reports show one exception.  On 2 April 1944, the company was ordered back to the front until around 12 April 1944.

5.  During the temporary return to the front, the FSM and a fellow replacement, Private D.T.H., were determined to have gone AWOL on 6 April 1944.  Having just experienced 30-plus days of extended combat followed by a promise of respite unexpectedly cut short, it would not be unheard of for Soldiers to go AWOL.  

6.  On 20 May 1944, the company DFR'd the FSM and Private D.T.H.  This was pro forma for any AWOL Soldier gone 30 days.  However, on 28 May 1944, Private D.T.H. returned to duty and his status was changed from DFR to present for duty.  The FSM did not return.  

7.  It is not known what Private D.T.H. may have told his chain of command about his or the FSM’s AWOL.  Presumably he was asked about the whereabouts of the FSM. Obviously he did not provide any information which caused the unit to change the FSM's status.  Unfortunately, Private D.T.H. was KIA on 1 June 1944.

8.  There simply is no evidence on which to base changing the FSM's status determination from AWOL and later DFR'd.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X ___  ___X____  ___X  ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



      __________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)                                         AR20120000131



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ABCMR Record of Proceedings (cont)                                         AR20120000131



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