IN THE CASE OF:	  

		BOARD DATE:	  17 December 2014

		DOCKET NUMBER:  AR20140006797 


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 his military records to show award of the Prisoner of War (POW) Medal.

2.  The applicant states on 30 May 1991 he was captured and held prisoner by a Shiite army while on duty caring for Kurds and coalition soldiers.  His clinic was attacked by machine gun fire and overrun.  He was held prisoner after being separated from his medics.  He was interrogated at gunpoint, tortured most of the day, and choked into unconsciousness by the enemy.  He was released to gather supplies for them and made his escape.  The British took him to safety and their mission was declared over due to his capture and escape.  He states for saving his patients' lives and period of captivity he was awarded the Bronze Star Medal with "V" Device.  These award citations show evidence of his captivity and torture as a part of the write-up and citation, as well as the other enclosed evidence of an "active conflict."

	a.  He states the initial awards recommendations were "lost" as was learned years later.  His noncommissioned officer-in-charge and he rewrote the requests for awards, submitted them to the U.S. Army Human Resources Command (HRC) Awards Branch, who promptly denied all of them.  Efforts made through congressional channels to obtain the requested awards were also unsuccessful.  In HRC's view, the actions in northern Iraq in the spring and summer of 1991 were purely humanitarian in nature and did not qualify as an "active conflict," despite his enclosures to the contrary which showed clearly that Operation Provide Comfort (OPC) Phase 1 was a very active conflict and defined as "defensive combat operations" in official orders.  The commanding generals also called OPC 1 "conflict control."  The Soldiers in this conflict, which was a continuation of Desert Storm and falls under the Gulf War, were awarded combat patches, were given combat pay and combat tax exclusion as well as joint service credit.  Unfortunately, the media inappropriately focused only on the early minor humanitarian slice, which became huge in later iterations of OPC.  Those award recommendations for Soldiers and medics who were providing care while under fire were for Bronze Star Medals for service and Combat Medical Badges for those medics who were providing care while under fire, which was a frequent event while assigned to the British Royal Commandos.  It is important to note that the early phases of OPC, especially Phase 1, were violent and a continuation of combat of the Gulf War.

	b.  As an administrative remedy, he separated the request for the POW Medal from the other awards recommendations and in 2009 finally submitted a request to the HRC Awards Branch for award of his POW Medal.  The HRC Awards Branch denied this request, saying "You do not qualify because there was no ongoing conflict and the U.S. was not at war with the Shiite Army."  They ignored that he qualified under another paragraph, while assigned to the British Royal Marine Commandos, who were "at war" with this army.  He was assigned as an emergency physician and they were in daily contact with the army and in frequent firefights, as well as being machine gunned often at night.  They ignored the supporting evidence of an active conflict, as well as his Bronze Star Medal with "V" Device and Purple Heart, which are real combat awards.

	c.  His next step in seeking an administrative remedy was to send a letter to the Civilian Aide to the Secretary of the Army for Northern California asking him to forward his "packet" and request to the Secretary for consideration.  He did not receive a response to his request.  He states that it is his desire to be considered for the POW Medal by the Board's actions under the clause of Title 10, U.S. Code, paragraph 1128a(2), (3), and (4).  He further states that Army Regulation 600-8-22 (Military Awards) states that absent an "active conflict," if the capture occurred under circumstances that are like an active conflict, and that the period of captivity included abuse, torture, and actions against the prisoner like during a war then he may also be issued a POW Medal.  He was captured, held prisoner, tortured, beaten, and stabbed.  This after being rifle butted onto concertina wire after saving the lives of his patients by stepping in front of an AK-47 held by an enemy soldier aiming to kill these patients.  He escaped by negotiating for getting all his medics and supplies together and being picked up by the enemy in the morning for transport to their compound as the "Army and Imam's personal physician" and medical team.  The British took them into their guard and they were taken out of theater early in the morning.  He is now 73 years old, more than 22 years after that trauma, and still recalls that episode vividly during nightmares.  He needs closure.
3.  The applicant provides:

* his letter to Lieutenant Colonel (LTC) GD
* LTC GD's letter to him
* multiple letters to and from members of Congress
* rewritten recommendations for awards
* POW Medal request to HRC
* DD Form 2510 (POW Medal Application/Information)
* HRC's POW Medal denial
* HRC's response to a member of Congress concerning the applicant's request for the POW Medal
* Bronze Star Medal orders and Certificate
* Purple Heart Certificate
* his letter to the Honorable JS, Civilian Aide to the Secretary of the Army for assistance in obtaining the POW Medal with attached supporting documents
* extract of the POW Medal law and regulatory policy 

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 is a retired U.S. Army Reserve Brigadier General. 

3.  In support of his application, the applicant provides his letter to LTC GD and LTC GD's response to that letter regarding missing citations for the applicant's efforts in northern Iraq during OPC.  LTC GD stated in his response, dated 16 November 1994, that he remembered the citations the applicant wrote and that they were forwarded for processing.

4.  He submits multiple letters related to correspondence with a member of Congress in 1995 related to his request for assistance in obtaining awards recommended for his unit during OPC.  Enclosed were recommendations for an award for valor and the Purple Heart.  The description of the situation indicated that on 30 May 1991, while on duty providing care for Kurdish civilians and Coalition soldiers, the applicant's clinic was captured by Shiite fundamentalist rebels.  The rebels threatened the lives of the patients and medics on duty and robbed them.  During the robbery the applicant was taken to another tent for interrogation by the rebels.  While attempting to shield patients, the applicant was rifle butted from behind and pushed forcefully onto concertina wire.  He sustained multiple deep lacerations to his hands and arms as he fell into the concertina wire and while freeing himself.  The applicant was then taken bleeding into a separate tent and interrogated at gunpoint.  The applicant finally negotiated his own release, with the rebels threatening to return the next day.  He was recommended for award of the Purple Heart for wounds sustained while under fire on defensive combat operations.

5.  He submits a letter to HRC, dated 26 January 2009, wherein he requested award of the POW Medal.  He stated in his request that on 30 May 1991, his clinic was overrun and captured by an armed force of a Shiite rebel army and robbed of supplies.  This was an armed enemy force/foreign armed force with which they were in a conflict/combat that had been attacking/machine gunning their compound, clinic, and local villages on a daily basis, as well as getting into firefights with the British Royal Marines to which he was attached from C Company, 501st Support Battalion, 3d Infantry Division.  The operations in northern Iraq at the time were formally termed "defensive combat operations" but were also humanitarian in nature.  It was still designated as an imminent danger and fire/combat zone, and there were several hostile armed forces carrying on combat operations.  He stated that he was captured and held captive/imprisoned while tortured and interrogated.

6.  He also submits a DD Form 2510 stating that on 30 May 1991, in Iraq, he was held prisoner, tortured, beaten, stabbed, and released by his captors to bring his medics to them and he escaped with the help of the British.

7.  The HRC Awards Branch stated in a letter, dated 16 March 2009, that the regulation governing the POW Medal states that hostages of terrorists and persons detained by governments with which the U.S. is not engaged actively in armed conflict are not eligible for this award.  As the U.S. was not at war with the Shiite rebels in 1991, he was not eligible for the POW Medal.  A hand-written note on the letter indicates the applicant feels HRC did not consider other qualifying criteria, namely Title 10, U.S. Code, section 1128(a)(4).
  
8.  The HRC Awards Branch stated in a letter to a member of Congress, dated 21 September 2011, that as previously stated in correspondence to the applicant, hostages or terrorists and persons detained by governments with which the U.S. is not actively engaged in armed conflict are not eligible for this award.  HRC further stated that the sub-paragraph in the regulation governing the POW Medal that the applicant mentioned in his letter is for Soldiers serving with friendly forces engaged in an armed conflict against an opposing armed force in which the U.S. is not a belligerent party.  As the U.S. and United Kingdom were not engaged in armed conflict with the Shiite rebel army, the applicant is not eligible for this award.

9.  He submits a copy of his letter to the Honorable JS, Civilian Aide to the Secretary of the Army, requesting assistance in obtaining the POW Medal with attached supporting documents.  In his letter he describes at length his unsuccessful efforts to obtain the POW Medal.  He provides dictionary definitions of "hostage" and "prisoner" as defined by various sources.  He further argues that there was active conflict and gives reasons to support his statement.  He described the situation in northern Iraq in Phase 1 of OPC as plainly an armed conflict, a follow-on and continuation of the combat in Southern Iraq.  He also describes how Soldiers supporting OPC were generally treated the same as those Soldiers during earlier wartime action in Iraq in that they were authorized the Shoulder Sleeve Insignia-Former Wartime Service and combat zone tax exclusion.  He also cites the fact that he was awarded the Purple Heart for injuries sustained from torture while held a prisoner and the Bronze Star Medal with "V" Device for valor for his actions that day and during his captivity.  He summarizes, in part, by stating that if OPC is wrongly deemed not to be wartime duty or active conflict, one could say that at the very least he was being held captive/prisoner by an "armed force during war like conditions."  He also states awards regulations and manuals are outdated and not entirely in accordance with the law. 

10.  DoD Manual, Number 1348.33, Volume 2, states the POW Medal is authorized for any person who, while serving in any capacity with the U.S. Armed Forces, was taken prisoner and held captive after April 5, 1917.  The POW Medal shall be issued to U.S. military members and other personnel serving in any capacity with the U.S. Armed Forces, who were taken prisoner and held captive while:

* engaged in an action against an enemy of the U.S.
* engaged in military operations involving conflict with an opposing foreign force
* serving with friendly forces engaged in an armed conflict against an opposing armed force in which the U.S. is not a belligerent party 

11.  DOD Manual, Number 1348.33, Volume 2, further states the POW Medal may be awarded to any person who, while serving in any capacity with the U.S. Armed Forces, was held captive under circumstances not covered above, but which the Secretary concerned finds were comparable to those circumstances under which persons have generally been held captive by enemy armed forces during periods of armed conflict.  Award of the POW Medal under the comparable conditions provision is the exception and not the rule.  Authority to award the POW Medal under this provision may not be delegated below the Secretary concerned.  For comparable conditions comparison purposes, armed conflicts are defined as World War I, World War II, the Korean War, and the Vietnam Conflict.

12.  Army Regulation 600-8-22, paragraph 2-9d states hostages of terrorists and persons detained by governments with which the U.S. is not engaged actively in armed conflict are not eligible for the medal.

13.  Army Regulation 600-8-22, paragraph 2-9i states 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his situation in northern Iraq in support of OPC in 1991 when he was captured and interrogated in a nearby tent meets the criteria for award of the POW Medal.  He indicates the HRC Awards Branch does not see his situation accordingly and he blames this in part on "outdated regulations and manuals."  He further shows that he has exhaustively attempted to obtain the POW Medal through a member of Congress and a Civilian Aide to the Secretary of the Army without success.  

2.  There is no disagreement with the definitions of hostage and prisoner that he provides.  However, these do not in and of themselves correspond with the meaning of armed conflict seen during World War I, World War II, Korean War, or the Vietnam Conflict.  The Secretary has not determined that OPC is an exception for comparable conditions comparison purposes.  As such, the evidence does not show he met the criteria for POW status during this incident and award of the POW Medal.

3.  Unfortunately, his disagreement with the current awards regulatory policy and manuals and interpretation of this policy with respect to award of the POW Medal does not indicate an error or inequity in this case.  In view of the foregoing, there is an insufficient basis for granting the applicant's request.


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)                                         AR20140006797



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ABCMR Record of Proceedings (cont)                                         AR20140006797



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