IN THE CASE OF:	  

		BOARD DATE:	  20 August 2015

		DOCKET NUMBER:  AR20150012856 


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 record to show the Purple Heart (PH) with oak leaf cluster (OLC) and his status as a prisoner of war (POW).

2.  The applicant states:

	a.  He received the PH in the mail after his discharge for being wounded by a grenade the night he was captured and for having frozen feet.

	b.  Three months after his return to the United States, he reported to Fort Sam Houston where he was told his military record had been lost.

	c.  He was transferred to Fort Bliss, Texas, where within 4 days he was discharged from the Army following an order that was published authorizing immediate discharge for POWs.

	d.  He now finds that the PH and his POW status are not listed on his discharge document, and he also believes he is entitled to the Combat Infantryman Badge (CIB).

3.  The applicant provides:

* Two self-authored statements
* WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge)
* photocopy of the PH Medal with Oak Leaf Cluster (inscribed with his name on the back)
* Three book/article extracts titled:

* “The Story of the Century” - (cover and page 289)
* “First Class Privates” - (cover and pages 84-85)
* “Whatever Happened to Company A” – (cover and page 57) with witness statement

* two Department of Veterans Affairs (VA) Letters dated 6 January 1999 and 7 March 2000 with three pages of Progress Notes

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 military records are not available for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center (NPRC) in 1973.  It is believed his records were lost or destroyed in that fire.  This case is being considered using the applicant’s WD AGO-Form 53-55 and the evidence he provides which is sufficient for the Board to make a determination.

3.  The applicant’s WD AGO Form 53-55 shows he was inducted into the Army of the United States on 20 December 1943.  He entered active duty on 10 January 1944 and was trained in and awarded infantry military occupational specialty (MOS) 607 (Light Mortar Crewman).

4.  His WD AGO Form 53-55 shows he served in the European Theater of Operations (ETO) from 20 October 1944 to 13 June 1945.


5.  On 24 November 1945, the applicant was honorably discharged having completed 1 year, 11 months, and 5 days of creditable active military service.  Item 32 (Battles and Campaigns) of the FSM's WD AGO Form 53-55 shows he participated in the Rhineland campaign and Item 33 (Decorations and Citations) shows he earned the following awards:

* Army Good Conduct Medal
* European-African-Middle Eastern Campaign Medal
* American Theater Ribbon
* World War II Victory Medal
* Combat Infantryman Badge
* Expert Marksmanship Qualification Badge with Rifle Bar

6.  Item 34 (Wounds Received in Action) of the WD AGO Form 53-55 contains the entry “None shown.”  The applicant authenticated this document with his signature, thereby verifying that the information contained thereon was correct.

7.  The National Archives and Record Center Administration (NARA) maintains the WWII POW Data File for the period 7 December 1941 through 19 November 1946.  A record pertaining to the applicant is included in this file and it shows he was detained as a POW from 4 December 1944 to 29 May 1945 while assigned to the 398th Infantry Regiment.

8.  The applicant’s evidence includes:

	a.  “The Story of the Century” document extract that includes a listing of the
“First Battalion (Battle Casualties).”  The applicant’s name is included on this listing and it shows he was captured in France.

	b.  Two witness accounts found in books or articles titled “First Class Privates” and “Whatever Happened to Company A”.  These two witnesses indicate:

* they were assigned for duty in Germany with the applicant
* while under fire, they took cover in the basement of a French house
* the Germans fired a grenade in through the basement window where it exploded next to or on the applicant wounding him

	c.  A witness statement from the author of “Whatever Happened to Company A” also shows:

* both he and the applicant were assigned to Company A, 398th Infantry Regiment, 100th Infantry Division, when the entire division deployed overseas by boat the first week in October 1944
* on 3 December 1944, their unit was ordered into Wingen, France at night where they met with heavy resistance leaving many wounded and killed
* the applicant suffered a concussion and left arm and hand wounding leaving him totally paralyzed
* it took several months before the applicant regained any use of his fingers, hand or arm, or left side due to his injuries
* they all suffered frozen feet in Germany’s coldest winter on record

	d.  VA letters dated 6 January 1999 and 7 March 2000 show the applicant received an increased disability rating for his cold injury residuals right and left foot each from 20 percent to 30 percent and his 10 percent disability rating for post-traumatic stress disorder remained the same.

	e.  An unofficial Progress Note (work copy), Columbia, South Carolina, dated 2 November 1999, shows the applicant as a combat veteran of WWII who:

* served as a light mortar man with the 100th Infantry Division, 7th Army
* landed at LeHarve (France) in October 1944 and entered the front line on 1 November 1944, where many were killed in an enemy “88” attack
* was captured in France on 4 December 1944
* suffered concussion trauma from a German grenade and a total paralysis to his left arm for many weeks
* was transported in unheated box cars 3-4 days and was frostbitten

9.  War Department Circular 186-1944 provided that the CIB was to be awarded only to infantrymen serving with infantry units of brigade, regimental or smaller size.  The Awards Branch, Human Resources Command has advised, in similar cases, that during World War II, the CIB was normally awarded to enlisted individuals who served in infantry MOS 607 (Light Mortar Crewman).

10.  Army Regulation 600-45 (Personnel Decorations), in effect through May 1944, contained the Army’s awards policy in effect at the time.  It provided for award of the PH to members who were wounded in action against an enemy of the United States, or as a direct result of an act of such enemy, provided the wound necessitated treatment by a medical officer.  For the purpose of awarding the PH, a wound was defined as an injury to any part of the body from an outside force, element, or agent sustained as the result of a hostile act of the enemy or while in action in the face of the enemy.  In connection with this definition of “wound,” the word “element” referred to weather.

11.  In May 1944, a change to the awards regulation restricted award of the PH for cold-weather injuries to personnel who were severely frostbitten while 
engaged in combat, and specified that trench foot did not merit the award.  In 1951, a change to the regulation eliminated weather related injuries, to include frostbite, which they determined were accidental in nature and not the result of enemy action, and eliminated weather related injuries from PH consideration.

12.  In a 1998 Information Paper, the Military Awards Branch, Human Resources Command, provided information regarding award of the PH for frostbite and trenchfoot during World War II.  It indicated, in effect, that after considering the regulatory guidance in effect at the time, and a 5 October 1944 recommendation of The Surgeon General that the PH be authorized for frostbite, immersion foot and trenchfoot of a specified degree of severity, and the conclusion that this was not practical, it was concluded that the PH was authorized for severe cases of frostbite between 13 November 1943 and 21 August 1951, and that trenchfoot was never officially recognized as meriting award of the PH.

13.  Army Regulation 600-8-22 (Military Awards), currently in effect, prescribes the Army’s awards policy.

	a.  Paragraph 2-9 states that 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 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.  

	b.  Paragraph 2-9 of the awards regulation also states that casualty reports; messages/letters/telegrams sent home; unit journals; diaries; sworn eyewitness statements or affidavits; photos, ID Card, or other documents taken or obtained while in captivity; news clippings and other evidence in support of the request  should be submitted with POW Medal applications to assist in validating the award.  Statutory and regulatory time limits pertaining to award of the POW Medal do not apply.  The POW Medal may be awarded at any time after submission of documented evidence that all criteria have been met.

	c.  Paragraph 3-13d(2) of the awards regulation states the BSM is authorized to members of the Armed Forces of the United States who, after 6 December 1941, were cited in orders or awarded a certificate for exemplary conduct in ground combat against an armed enemy between 7 December 1941 and 2 September 1945.  This paragraph also stipulates that for this purpose, an award of the CIB is considered as a citation in orders for award of the BSM.

	d.  Paragraph 5-13 of the awards regulation contains guidance on the European-African-Middle Eastern Campaign Medal.  It states that a bronze service star is authorized with this award for each campaign a member participated in while serving in the ETO.

14.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing discharge documents.  It directs that, in the case of prisoners of war, 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.  In the absence of the applicant’s official military personnel file (OMPF), the evidence in this case is jointly derived from his WD AGO Form 53-55, witness statement and accounts, NARA WWII POW Data File, 1st Battalion Casualty Listing, and Progress Notes.  This evidence supports the applicant’s claim he was wounded in action by an enemy thrown grenade in France on or about 4 December 1944; he sustained a concussion and left arm and hand injuries rendering him totally, yet temporarily paralyzed; and at that time, he was immediately captured by the enemy and held as a POW.  A witness statement and the Progress Notes shows he suffered frostbite while being transported in unheated boxcars for 3 to 4 days.  Through no fault of his own, his records are not available and any documents of medical treatment he may have received as result of his wounding may not have been available otherwise, given he was a captured POW.  Accordingly, based on the evidence depicted in this case, the applicant’s record should be corrected to show the PH with OLC.

2.  NARA files confirm he was captured by the enemy on 4 December 1944 and detained as a POW until 29 May 1945.  Therefore, in the interest of justice, it would be appropriate to recognize the applicant’s POW status at this time by adding it to his WD AGO Form 53-55 and awarding him the POW Medal.  

3.  The applicant’s service in an infantry MOS with an infantry regiment while participating in combat validates his claim to the CIB and it should now be awarded to him.  Also, by regulation, members who received the CIB during World War II are authorized award of the BSM.  As a result, it would be appropriate to award him the BSM and add this award to his WD AGO Form 
53-55.

4.  Finally, based on the applicant’s campaign participation in the ETO, he earned one bronze service star with his already-awarded EAME Campaign Medal.  Accordingly, item 33 of his WD AGO Form 53-55 should be corrected at this time to properly reflect this award.

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 him the Combat Infantryman Badge and the Bronze Star Medal based on this badge; and

	b.  amending his WD AGO Form 53-55 by:

* item 33 – deleting the European-African-Middle Eastern Campaign Medal and adding the following awards:

* Bronze Star Medal
* Purple Heart with Oak Leaf Cluster 
* Prisoner of War Medal
* European-African-Middle Eastern Campaign Medal with bronze service star
* Combat Infantryman Badge

* item 34 – adding the entry "Left Arm and Hand, France, December 1944" and “Frostbite, France, December 1944”

* 
item 55 (Remarks) – adding the entry "PRISONER OF WAR: 398th Infantry Regiment, France, 4 December 1944 - 29 May 1945”




      _______ _   _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)                                         AR20150012856





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ABCMR Record of Proceedings (cont)                                         AR20150012856



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