IN THE CASE OF:	  

		BOARD DATE:	  26 FEBRUARY 2009

		DOCKET NUMBER:  AR20080017809 


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, correction of his records to show he was wounded in action and awarded the Purple Heart.

2.  The applicant states, in effect, he would like his records corrected so that they properly document his military service and family history.

3.  The applicant provides a copy of a WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty, or Retirement), dated 15 November 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 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 applicant's records were lost or destroyed in that fire.  However, there were sufficient documents in the way of a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant's available military service records contain a copy of a WD AGO Form 0365 (Battle Casualty Report) that shows, in pertinent part, the applicant was reported missing in action (MIA) in Italy on 22 January 1944.

4.  The applicant's available military service records contain a copy of Headquarters, 143rd Infantry, letter, dated 11 February 1944, subject:  Missing-In-Action Narrative Concerning Private [Applicant’s Name and Service Number], Company E, 143rd Infantry, MIA on 22 January 1944.  This document shows, in pertinent part, that the Assistant Personnel Officer documented the events of the unit’s actions on 20-21 January 1944 and confirmed that the applicant’s status could not be determined at that time.

5.  The applicant's available military service records contain a copy of a War Department Telegram, dated 3 May 1944, that shows, in pertinent part, the Acting Adjutant General notified the applicant’s mother that records of the War Department were amended to show the applicant was a prisoner of war (POW) of the German Government.

6.  The applicant's available military service records contain a copy of a WD AGO Form 0365 that shows, in pertinent part, the applicant was reported returned to military control (RMC) on 3 May 1945.

7.  The applicant's available military service records contain a copy of a WD AGO Form 91 (Report of Physical Examination of Enlisted Personnel at Redistribution Station), dated 24 August 1945.  Item 11 (List All Significant Diseases, Wounds, and Injuries.  State Circumstances Under Which Wound or Injuries Were Incurred.  Answer Yes or No in Columns 1 to 4) shows the applicant was wounded in action (WIA) in the left leg in January 1944.  Item 37 (Musculoskeletal Defects) contains the entry "See #44."  Item 44 (Remarks or Other Defects) contains an entry that references item 37 and states "multiple shell fragment wound, left thigh, adherent scars, symptoms mild."  The WD AGO Form 91 also shows that it was authenticated by three Army Medical Corps officers.

8.  The applicant’s available military service records contain a WD AGO Form  53-55 (Enlisted Record and Report of Separation - Honorable Discharge) that shows he was inducted into the Army of the United States on 11 June 1943, entered active duty on 25 June 1943, and served in the Infantry Branch of the Army of the United States with military occupational specialty 745 (Rifleman).  He was assigned to Company E, 143rd Infantry Regiment, and served in the European-African-Middle Eastern theater of operations from 4 December 1943 to 5 June 1945.  Item 31 (Military Qualification and Date (i.e., infantry, aviation, and marksmanship badges, etc.)) contains the entry "none."  Item 32 (Battles and Campaigns) shows he participated in the Naples-Foggia, Rome-Arno, and Central Europe campaigns.  Item 33 (Decorations and Citations) shows he was awarded the Good Conduct Medal, European-African-Middle Eastern Campaign Medal with 3 bronze service stars, and World War II Victory Medal.  Item 34 (Wounds Received in Action) contains the entry "none."  The applicant was honorably discharged on 25 November 1945 after completing 10 months and 3 days of continental service; 1 year, 6 months, and 19 days of foreign service; and 2 years, 5 months, and 5 days of total service for pay.

9.  The applicant's available military service records contain a copy of a WD AGO Form 106 (Request for Decoration and/or Citation), dated 13 November 1945.  This document shows that the applicant initiated a claim for the Combat Infantryman Badge and Purple Heart based on his service with the 143rd Infantry Regiment, 36th Division, from 10 January to 22 January 1944 when he was injured at the Cassino Front and captured 1 hour later by the Germans.

10.  The applicant's available military service records contain a copy of a War Department Adjutant General’s Office letter, dated 11 October 1946, subject:  Award of the Combat Infantryman Badge, that shows the applicant was awarded the Combat Infantryman Badge for satisfactory performance of duty in ground combat against the enemy while attached or assigned to the 143rd Infantry Regiment effective 15 January 1944 by order of the Secretary of the Army.

11.  The applicant's available military service records contain a copy of a War Department Authorization for Issuance of Awards, dated 11 October 1946, that shows The Adjutant General authorized award of the Combat Infantryman Badge to the applicant per War Department Adjutant General’s Office Letter Order, dated 11 October 1946, effective 15 January 1944.

12.  There is no evidence in the applicant's available military service records that shows he was awarded the Purple Heart.

13.  In support of his application, the applicant provides a copy of a WD AGO Form 38, dated 15 November 1945.  Item 11 contains the entry "see 21 – over shrapnel wounds and residual pain."  Item 21 (Musculoskeletal Defects) contains the entry "see reverse."  Item 48 (Use this space for a continuation of remarks or other defects from the reverse side only) contains an entry that references item 21 and, in pertinent part, states "shrapnel wounds left thigh with marked scar residual, some atrophy of thigh muscles.  Wounded in 1944.  Hospitalized in POW camp IMS [acronym unknown].  Complains of pain occasionally."

14.  A review of the applicant's records reveals that he may be entitled to additional awards which are not shown on his WD AGO Form 53-55.

15.  There is no evidence in the applicant's available military service records that shows he was awarded the Bronze Star Medal.

16.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that 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 also 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 World War II.

17.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Army Regulation 600-45 (Decorations), which governed the award of Army decorations until 23 August 1951, stated that for the purpose of considering an award of the Purple Heart, a "wound" is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.

18.  During World War II and the Korean War, the Purple Heart was not awarded to Soldiers who had been injured while in captivity or while being taken captive.  These injuries were considered to be the result of war crimes and not the result of a legal action of war.  War Department policy, at that time, required that wounds must have been received in action against the enemy or, in other words, incurred in actual combat.  Executive Order 11016, dated 25 April 1962, provided more latitude with respect to award of the Purple Heart to POWs, as well as the authority to award the decoration to wounded Soldiers even in the absence of a formal declaration of war.  The issue as to whether this change in policy would be implemented retroactively to POWs from World War I, World War II, and the Korean War was considered several times.  Initially it was decided that the change in policy would not be retroactively implemented.  It was concluded that it would be inappropriate for the Department of Defense to retroactively change the standards and, in effect, countermand the decisions of the past leadership.  However, as part of the National Defense Authorization Act of 1996, Congress authorized award of the Purple Heart to any former POW who was wounded before 25 April 1962 while held as a POW, or while being taken captive, in the same manner as a former POW who was wounded on or after that date.

19.  Army Regulation 600-8-22 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.

20.  War Department Technical Manual 12-235 (Enlisted Personnel - Discharge and Release from Active Duty), dated January 1945, provided uniform procedures in discharging or releasing personnel from active duty.  The instructions for completing the WD AGO Form 53-55 stated that the form was completed from the Service Record, Soldier's Qualification Card, Immunization Register, and information ascertained by interview with the dischargee.

21.  Army Regulation 635-5 (Separations Document), currently in effect, establishes the standardized policy for preparing and distributing discharge documents.  In pertinent part, it directs that, in the case of POWs, the unit of assignment, country and dates of capture and release will be entered in the "Remarks" section of the discharge document.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show he was wounded in action and awarded the Purple Heart.

2.  The evidence of record confirms he was injured at the Cassino Front prior to being captured in Italy on 22 January 1944.  The evidence of record also shows that the applicant was reported MIA on 22 January 1944, which was amended to show his status as a POW of the German Government, and he was RMC on 3 May 1945.  In addition, two Reports of Physical Examination in the applicant’s military service records document that he was wounded in action in January 
1944.  Thus, the applicant’s military service records confirm that he was wounded in action in Italy in January 1944.  Therefore, it would be appropriate to correct the applicant’s discharge document to show he was WIA on 22 January 
1944 in Italy and awarded the Purple Heart.

3.  The evidence of record shows that the applicant qualified for award of the Combat Infantryman Badge effective 15 January 1944 based on his exemplary conduct in ground combat against the enemy during World War II.  The evidence of record also shows The Adjutant General authorized award of the Combat Infantryman Badge to the applicant on 11 October 1946.  Therefore, it would be appropriate to correct his discharge document to show award of the Combat Infantryman Badge.

4.  The evidence of record shows that an award of the Combat Infantryman Badge is considered to be a citation in orders for the Bronze Star Medal.  Therefore, the applicant is also authorized award of the Bronze Star Medal for meritorious achievement in ground combat during World War II.

5.  The evidence of record shows the applicant is authorized award of the Prisoner of War Medal based on his status as a POW from 22 January 1944 to 3 May 1945.  Therefore, it would be appropriate to correct his records to show award of the Prisoner of War Medal.

6.  The evidence of record also shows that the applicant's discharge document should reflect his status as a POW during World War II.  Therefore, his records should be corrected to show his unit of assignment, country, and dates of capture and release in the "Remarks" section of his discharge document.

BOARD VOTE:

___X____  ___X____  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.  awarding the applicant the Bronze Star Medal for meritorious achievement in ground combat from 15 January 1944 to 22 January 1944 based on award of the Combat Infantryman Badge;

   b.  awarding the applicant the Purple Heart for wounds received in action in Italy on 22 January 1944;

   c.  deleting from item 31 of his WD AGO Form 53-55 the entry "none";

   d.  adding to item 31 of his WD AGO Form 53-55 the Combat Infantryman Badge;

   e.  adding to item 33 of his WD AGO Form 53-55 the Bronze Star Medal, Purple Heart, and Prisoner of War Medal;

   f.  deleting from item 34 of his WD AGO Form 53-55 the entry "none";

   g.  adding to item 34 of his WD AGO Form 53-55 the entry "22 January 1944, Italy"; and

   h.  adding to item 55 (Remarks) of his WD AGO Form 53-55 the entry "Company E, 143rd Infantry Regiment; Italy; captured 22 January 1944 and released 3 May 1945."



      _________XXX_____________
                 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)                                         AR20080017809



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ABCMR Record of Proceedings (cont)                                         AR20080017809



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