IN THE CASE OF:	  

		BOARD DATE:	  15 September 2015

		DOCKET NUMBER:  AR20140017017 


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 records of his deceased father, a former service member (FSM), to show he was wounded in action and awarded the Purple Heart.  He also requests, in effect, correction of the FSM's WD AGO Form 53-55 (Enlisted Record and Report of Separations – Honorable Service) to show:

* the FSM's prisoner of war (POW) status
* Purple Heart and POW Medal

2.  The applicant states his father was wounded in combat in France during World War II.  He believes the injury occurred during the Battle of Cherbourg where he was later captured and became a POW.  He received shrapnel wounds and received an engraved Purple Heart medal.  His discharge document does not show any wounds or award of the Purple Heart.  His discharge document also does not show his POW status.

3.  The applicant provides:

* his birth certificate issued on 12 April 2007
* his birth certificate filed on 30 July 1957
* FSM's death certificate
* photographs of the FSM's award shadow box, Purple Heart medal, and a handmade commemorative belt buckle


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 18 million service members' records at the National Personnel Records Center 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 Separations – Honorable Service) shows he was inducted into the Army of the United States on 7 October 1943 and entered active duty in New York City on or about 28 October 1943.  This form also shows he held military occupational specialty 745 (Light Truck Driver) and he was assigned to an infantry division.

4.  His WD AGO Form 53-55 also shows he departed the continental United States on or about 5 April 1944 and arrived in the European-African-Middle Eastern theater on or about 19 April 1944.  He departed the European-African-Middle Eastern theater on or about 5 April 1945 and arrived in the continental United States on or about 19 May 1945.

5.  He was honorably separated on 23 December 1945.  He was credited with 1 year, 1 month, and 2 days of continental service and 1 year, 1 month, and 15 days of foreign service.

6.  His WD AGO Form 53-55 shows in:

	a.  item 31 (Military Qualifications and Date), he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar (M-1);

	b.  item 32 (Battles and Campaigns), he participated in the Normandy, Northern France, and Central Europe campaigns;

	c.  item 33 (Decorations and Citations), he was awarded the Army Good Conduct Medal; and

	d.  item 34 (Wounds Received in Action), the entry "None."

7.  The FSM's medical records are not available for review.  His available service records do not contain documentation showing he was wounded in action.

8.  A review of the National Archives and Records Administration World War II POW Database, documenting records of World War II POWs during the period 7 December 1941 through 19 November 1946, revealed a record showing the FSM was interned at the Stalag IV-B Mühlberg Sachsen 51-13 POW camp in Germany and was later returned to military control, liberated, or repatriated.  It show the dates of his internment as 19 June 1944-1 June 1945.

9.  The applicant provides photographs of the FSM's award shadow box, Purple Heart medal with the FSM's name inscribed, and a handmade commemorative belt buckle.  He did not provide orders awarding the FSM the Purple Heart.

10.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards.

	a.  The Purple Heart is awarded for a wound sustained in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required medical treatment, and the medical treatment must have been made a matter of official record.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:  injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and/or concussion injuries caused as a result of enemy generated explosions.

	b.  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.  Those injuries were considered to be the result of war crimes and not the result of a legal action of war.  War Department policy 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, 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.

	c.  The POW Medal was authorized on 8 November 1985 and is awarded to individuals who in past armed conflicts were taken prisoner or held captive after 5 April 1917.  The POW Medal is to be issued only to those U.S. military personnel and other personnel granted creditable U.S. military service who were taken prisoner and held captive:

* while engaged in an action against an enemy of the United States
* while engaged in military operations involving conflict with an opposing foreign force
* while serving with friendly forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party
* by foreign armed forces that are hostile to the United States, under circumstances which the Secretary concerned finds to have been comparable to those under which persons have generally been held captive by enemy armed forces during periods of armed conflict

	d.  The American Campaign Medal is awarded for qualifying service in the American theater between 7 December 1941 and 2 March 1946.  Qualifying service for this campaign medal includes permanent assignment outside the continental United States but within the American theater of operations, or duty as a crewmember aboard a vessel sailing ocean waters for 30 consecutive or 60 nonconsecutive days, or duty outside the continental United States as a passenger or in a temporary duty status for 30 consecutive or 60 nonconsecutive days, or active combat against the enemy and was awarded a combat decoration or furnished a certificate by a corps commander or higher, or service within the continental United States for an aggregate period of 1 year.

	e.  The European-African-Middle Eastern Campaign Medal is awarded for service within the European African-Middle Eastern theater between 7 December 1941 and 8 November 1945.  This medal is awarded to any service member who was permanently assigned in the theater, who was in a passenger status or on temporary duty for 30 consecutive or 60 nonconsecutive days, who was in active combat against the enemy and was awarded a combat decoration, or who was furnished a certificate by the commanding general of a corps or higher unit or independent force showing he actually participated in combat.  A bronze service star is authorized with this medal for each campaign a member is credited with participating in.

	f.  The World War II Victory Medal is awarded for service between 7 December 1941 and 31 December 1946, both dates inclusive.

11.  Army Regulation 635-8 (Separation Processing and Documents) prescribes the transition processing function of the military personnel system.  This regulation provides the steps governing preparation of separation documents.  It states that if the Soldier has been in a POW status, whether or not eligible for award of the POW Medal, enter the unit of assignment, country, and the dates of capture and release.

DISCUSSION AND CONCLUSIONS:

1.  The National Archives and Records Administration World War II POW Database confirmed the FSM was interned at the Stalag IV-B Mühlberg Sachsen 51-13 POW camp in Germany.  He meets the eligibility criteria for award of the POW Medal.  It would be appropriate to posthumously award him the POW Medal and correct his WD AGO Form 53-55 to show award of the POW Medal.

2.  The FSM was a POW from 19 June 1944 to 1 June 1945.  It would be appropriate to amend his WD AGO Form 53-55 by adding an entry in item 55 (Remarks) reflecting his POW status.  

3.  The FSM's service in the continental United States qualifies him for award of the American Campaign Medal.  It would be appropriate to correct his WD AGO 
Form 53-55 to show award of the American Campaign Medal.

4.  The FSM's service in the European African-Middle Eastern theater and participation in three campaigns qualifies him for award of the European African-Middle Eastern Campaign Medal with three bronze service stars.  It would be appropriate to correct his WD AGO Form 53-55 to show award of the European African-Middle Eastern Campaign Medal with three bronze service stars.

5.  The FSM's service during the period 28 October 1943 through 23 December 1945 qualifies him for award of the World War II Victory Medal.  It would be appropriate to correct his WD AGO Form 53-55 to show award of the World War II Victory Medal.

6.  The criteria for award of the Purple Heart requires the submission of substantiating evidence to verify the injury/wound was the result of hostile action, the injury/wound required treatment by medical personnel, and the medical treatment was made a matter of official record.  Notwithstanding the applicant's sincerity, there is no evidence in the FSM's available records that shows he was wounded or injured as a result of hostile action or treated for such wounds.  In the absence of orders or other documentation awarding the FSM the Purple Heart, the photographs of the Purple Heart medal are insufficient in and of themselves to correct the FSM's records to show award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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:

	a.  posthumously awarding the FSM the POW Medal;

	b.  adding the following awards to item 33 of his WD AGO Form 53-55:

* POW Medal
* American Campaign Medal
* European African-Middle Eastern Campaign Medal with three bronze service stars
* World War II Victory Medal

   c.  adding "PRISONER OF WAR, Germany, 19 June 1944 to 1 June 1945" to item 55 of his WD AGO Form 53-55.
   
2.  The Board further determined 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 adding award of the Purple Heart to the FSM's WD AGO Form 53-55.

3.  The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices made by his father in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      _____________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)                                         AR20140017017



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ABCMR Record of Proceedings (cont)                                         AR20140017017



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