BOARD DATE:	  13 May 2014

		DOCKET NUMBER:  AR20130015620 


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 correction of the WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge) of her late husband, a former service member (FSM), to show his Prisoner of War (POW) status.  She also requests that if she is entitled to any Army benefits that she be advised of the procedure for obtaining them.

2.  The applicant states:

   a.  The FSM's WD AGO Form 53-55 does not list any POW status during World War II.  His WD AGO Form 53-55 shows he served in the European Theater of Operations (ETO), but the computer states Burma/Africa POW status. There may be two other "C" file numbers.  His WD AGO Form 53-55 should be amended to show his POW status while captured.  

	b.  She is submitting all of the documents she could find to make it easier to amend the FSM's WD AGO Form 53-55 to list his POW status.  He was a World War II Veteran and she needs this corrected.  He served in the Army in the rank of private first class (PFC).  He had an inter-service transfer from the Army to the U.S. Air Force (USAF).

	c.  She is the FSM's common law wife and she is recognized by the Department of Veterans Affairs (VA) as such.  She is considered to be his surviving spouse.  


3.  The applicant provides copies of the FSM’s:

* WD AGO Form 100 (Separation Qualification Record)
* WD AGO Form 53-55
* Retirement Order
* Certificate of Retirement
* Official USAF Photograph
* bank deposit slip
* Application for Compensation or Pension at Separation from Service
* Statement of Service
* death certificate
* his mother's death certificate
* three VA Forms 1-9 (Appeal to Board of Veterans Affairs)
* three letters from the VA
* VA Form 21-0958 (Notice of Disagreement)
* two photographs of the FSM and his son
* Standard Form (SF) 180 (Request Pertaining to Military Records)
* two letters from the VA
* Archives List
* her letter to the National Archives and Records Administration (NARA) and their response

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 complete military records are not available to the Board for review. A fire destroyed approximately 16 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed his records were destroyed in that fire.  However, there was sufficient documentation contained therein and those submitted by the applicant for the Board to conduct a fair and impartial review of this case.
3.  The applicant provided a copy of and the FSM's available record contains a WD AGO Form 53-55 which shows the FSM was inducted into the Army of the United States (AUS) on 23 October 1942 and he entered active duty on
6 November 1942.  He held military occupational specialty 861 (surgical technician).  He served in the ETO from 15 October 1944 through 2 April 1946.  He was discharged on 16 April 1946.  His WD AGO Form 53-55 lists in:

* Item 1 (Last Name, First Name, Middle Initial) – Axxxxxxxx, Jxxx E.
* Item 2 (Army Serial No.) – 36-537-749
* Item 3 (Grade) – PVT (private)
* Item 6 (Organization) – 635th Medical Clearing Company
* Item 32 (Battles and Campaigns) - None
* Item 33 (Decorations and Citations) - the American Theater Ribbon, European-African-Middle Eastern Campaign Ribbon, Army Good Conduct Medal, and World War II Victory Medal
* Item 37 (Highest Grade Held) - PFC

4.  The applicant also provided copies of the following:

   a.  FSM's WD AGO Form 100 which shows his middle initial as "E," his Army Serial No. as 36-537-749, and his rank/grade as PVT.
   
   b.  FSM's Retirement Order, dated 30 April 1968, issued for his retirement from the USAF, effective 1 June 1968, in the highest grade held on active duty of temporary sergeant, and the resulting certificate.

	c.  USAF Official Photograph of the FSM.

	d.  A VA Form 21-536e, dated 26 April 1968, completed by the FSM for VA compensation or pension.

   e.  A Statement of Service, dated 5 January 1972, which shows the FSM served in the AUS from 23 October 1942 through 16 April 1946, the Enlisted Reserve Corps from 16 April 1946 through 7 February 1952, and the USAF from 8 February 1952 through 1 June 1968.

   f.  FSM's death certificate which shows he died on 11 October 1972 and his mother's death certificate.

   g.  Three VA Forms 1-9, dated 21 May 1991, 10 January 1992, and 8 May 1992, which pertain to her request for VA benefits.

	h.  two letters from the VA, dated 11 June 1993 and 6 January 1994, which pertain to her VA pension.

	i.  VA Form 21-0958, dated 16 August 2013, which pertains to her disagreement for service-connected dependency and indemnity compensation.

	j.  two photographs of the FSM and their son.

   k.  An SF 180 wherein she requested documentation pertaining to the FSM's POW status in World War II and Korea 

	l.  An Archives List which show three individuals with the same first and last names as the FSM, two individuals have the middle initial of "E," and one has the middle initial of "W."  The serial numbers on the list do not match the serial number that was assigned to the FSM.

	m.  A letter written to the NARA, dated 23 June 2013, wherein she requested verification of the FSM's POW status.

   n.  A letter, dated 11 July 2013, wherein NARA advised her of the following:
in response to her inquiry for records that would verify the POW status of Jxxx E. Axxxxxxxx (the FSM) during both World War II and the Korean War.

        (1)  They had searched their holdings, specifically the POW-related records, and were able to find the two documents which referred to POW status for an individual with the same first and last names as the FSM.  The information pertaining to that particular individual did not appear to match the information which she had provided in her letter.  That led them to believe that the two individuals were not identical.

		(2)  She was also advised that she could request the FSM's records, if available from the NPRC in St. Louis, MO. She was also provided a fact sheet about the fire at the NPRC.

5.  The U.S. NARA World War II POW Data File lists an individual who was in a POW status from 17 January through 13 February 1945.  That individual had the same first and last names as the FSM; however, that individual’s middle initial was "W" and his serial number was not the serial number assigned to the FSM.  The data file does not reveal the FSM was captured and held in a POW status during World War II.


6.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing discharge documents.  It directs that in the case of POW's, the unit of assignment, country, and dates of capture and release will be entered in the "Remarks" section of the discharge document.

7.  Title 31, U.S. Code, section 3702, also known as the Barring Statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U. S. Code, is relieving the Government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request and the documentation she submitted were carefully considered; however, the available evidence is void of any information that shows the FSM was captured and held in a POW status during World War or the Korean War.  In the absence of additional documentation that conclusively shows the FSM was a POW during World War II or the Korean War, there is insufficient evidence to correct his WD AGO Form 53-55 to show this status.

2.  With respect to the applicant's request concerning Army benefits based on the FSM's service, there are no pay records available for review.  There is no evidence and the applicant did not provide sufficient evidence showing she was unjustly or erroneously denied benefits from the Army.  The statute of limitations for a claim against the Government expired 6 years after the date of the FSM's death, which was 11 October 1972.

3.  In making this determination, the applicant and all others concerned should know that this nation 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.









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)                                         AR20130015620



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ABCMR Record of Proceedings (cont)                                         AR20130015620



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