IN THE CASE OF:	  

		BOARD DATE:	  10 March 2015

		DOCKET NUMBER:  AR20140011285 


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 his deceased father, a former service member (FSM), be awarded the Purple Heart. 

2.  The applicant states:

* the Department of Veterans Affairs (VA) confirms 100 percent service-connection for injuries resulting from treatment as a prisoner of war (POW)
* the law amended the criteria for award of the Purple Heart in February 1996 to persons wounded as a POW before April 1962
* the law states the Secretary shall treat a 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 or after that date while held as a POW or while being taken captive

3.  The applicant provides:

* His certificate of live birth 
* Extract of National Defense Authorization Act for 1996
* FSM's Certification of Military Service 
* FSM's Statement in Support of Claim 
* Letter from the VA with a VA Former POW Certificate
* FSM's death certificate



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 records are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the NPRC in 1973.  It is believed that his 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.  The FSM's WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Service) shows he was inducted into the Army of the United States on and he entered active service in Los Angeles, CA, on 19 October 1943. 

4.  His WD AGO Form 53-55 further shows at the time of his separation, the FSM held military occupational specialty (MOS) 745 (Rifleman) and he was assigned to Company L, 357th Infantry Regiment. 

5.  His WD AGO Form 53-55 further shows he departed the continental United States (CONUS) on 5 April 1944 and arrived in the European Theater of Operations (ETO) on 19 April 1944.  He departed the ETO on 14 June 1945 and he arrived back in CONUS on 22 June 1945.  

6.  His records contain a Western Union telegram, dated 27 August 1944 informing his mother that information received from the International Red Cross stated he was a POW of the Germany Government. 

7.  He completed 10 months and 27 days of CONUS service and 1 year, 2 months, and 23 days of foreign service.  He was honorably discharged on 4 December 1945, by reason of demobilization. 

8.  His WD AGO Form 53-55 further shows in:

* Item 31 (Military Qualifications and Date), the Combat Infantryman Badge and Marksman Marksmanship Qualification Badge with Rifle Bar
* Item 32 (Battles and Campaigns), the Normandy, Northern France, Rhineland, and Central Europe campaigns
* Item 33 (Decorations and Citations), the American Theater Service Ribbon, European-African-Middle Eastern Theater Service Ribbon with 4 bronze service stars, Good Conduct Medal, World War II Victory Medal, and two overseas service bars 
* Item 34 (Wounds Received in Action), the entry "None" 

9.  On 5 October 1988, he submitted a POW Worksheet for the purpose of awards and VA benefits.  He indicated he was confined as a POW on 7 July 1944 and released on 5 May 1945.  He was confined at Stalag 4A. 

10.  The FSM's name is listed on the National Archives, WWII POW Data File for the period 7 December 1941 to 19 November 1946 as having been imprisoned and that he was returned to military control, liberated or repatriated.  The file lists the date of his POW status as "7 July 1944 to 1 June 1945" and he was a member of "357th Infantry." 

11.  On 31 March 1993, he submitted a Statement in Support of Claim to the VA. He stated he was interned by the Germans as a POW from 7 July 1944 to 5 May 1945.  He was subjected to multiple beatings about his entire body with rifle butts.  He has been totally disabled since 1972 due to osteoarthritis which he attributed to the episodic beatings and cold weather he was subjected to while a POW.  He also stated he suffered from psychiatric conditions due to memories of his internment as a POW. 

12.  His reconstructed records contain a letter, dated 12 November 2012, wherein the VA informed him that the information used to establish his VA benefits had changed and that his now enrolled in Priority Group 1 based on being 100 service-connected and being a former POW. 

13.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

14.  Section 521a of the National Defense Authorization Act of 1996 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.  Section 521b specifically stated that award of the Purple Heart for POWs under Section 521a shall be made in accordance with the standards in effect on the date of the enactment of this Act to persons wounded on or after 25 April 1962.

15.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) shows that the 357th Infantry received occupation credit in Germany for the period 20 May 1945 through 31 October 1945

16.  Army Regulation 600-8-22 states: 

	a.  The POW Medal was authorized on 8 November 1985 and it is awarded to individuals who in past armed conflicts were taken prisoner or held captive

	b.  The Bronze Star Medal is awarded to members of the Armed Forces who, after 6 December 1941 and prior to 3 September 1945, have been cited in orders or in a formal certificate for meritorious or exemplary conduct in ground combat against the armed enemy.  A citation in orders for the Combat Infantryman Badge or Combat Medical Badge awarded in the field during the period of actual combat against the armed enemy is considered as a citation for exemplary conduct in ground combat.

	c.  The Army of Occupation Medal is awarded for service of thirty consecutive days at a normal post of duty in a qualifying location.  Personnel at a qualifying location as an inspector, courier, escort, temporary or detached duty are precluded from eligibility.  For award of the Army of Occupation Medal, with Germany Clasp, qualifying service must have occurred between 9 May 1945 and 5 May 1955 and the European-African-Middle Eastern Campaign Medal must have been awarded prior to 9 May 1945.

17.  Army Regulation 635-8 (Separations Documents), currently in effect, establishes the standardized policy for preparing and distributing discharge documents.  In pertinent part, it directs that, for a Soldier with POW documentation, enter "PRISONER OF WAR, (unit of assignment/country) (date of capture and release date)" in the Remarks section of the DD Form 214 (Certificate of Release or Discharge from Active Duty).

DISCUSSION AND CONCLUSIONS:

1.  The FSM served in the ETO during World War II from on or about 19 April 1944 to 14 June 1945.  He was held captive by the enemy in Germany from on or about 7 July 1944 to on or about 5 May 1945.  While his POW status is not in question, his entitlement to the Purple Heart remains unsubstantiated.  
2.  Although it is not unreasonable to presume the enemy mistreated U.S. Soldiers while in captivity, there is insufficient evidence the FSM sustained an injury while in captivity.  In the absence of evidence such as a repatriation medical examination, sworn statements made by witnesses to the incident which caused an injury, clinical records, and other documents prepared prior to the FSM's separation, there is insufficient evidence to award the FSM the Purple Heart. 

3.  Nevertheless, based on his POW status, he is entitled to award of the POW Medal and its addition to his WD AGO Form 53-55.  Additionally, he is entitled to an entry on his WD AGO Form 53 listing his POW status, unit of assignment/country, and dates of capture and release in the Remarks section of the WD AGO Form 53-55. 

4.  The evidence of record shows he was awarded the Combat Infantryman Badge.  Based on his entitlement to the Combat Infantryman Badge, he should be awarded the Bronze Star Medal.  He is entitled to correction of his WD AGO Form 53-55 to show this award.

5.   The FSM's WD AGO Form 53-55 shows he was assigned to the 357th Infantry Regiment during World War II.  His unit is listed as receiving occupation credit.  Therefore, he is entitled to award of the Army of Occupation Medal with Germany Clasp and correction of his WD AGO Form 53-55 to show this award. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

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

* awarding the FSM the Bronze Star Medal for meritorious service from 19 April 1944 to 14 June 1945
* awarding the FSM the POW Medal 
* adding to item 33 of his WD AGO Form 53-55 the Bronze Star Medal, POW Medal, and the Army of Occupation Medal with Germany Clasp
* adding to the Remarks section of his WD AGO Form 53-55 the entry "PRISONER OF WAR: 357th Infantry Regiment,  Germany, 7 July 1944 to 5 May 1945"

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the Purple Heart. 



      _______ _   __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)                                         AR20140011285





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140011285



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1