RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 October 2005
	DOCKET NUMBER:  AR20050000816 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Carl W. S. Chun

Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. Ted S. Kanamine

Chairperson

Mr. Patrick H. McGann, Jr.

Member

Ms. Carol A. Kornhoff

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The former service member's widow requests, in effect, payment of promotion back pay that she may be entitled to based on her husband's internment as a prisoner of war (POW) during World War II.

2.  The applicant states, in effect, that she recently was made aware of the entitlement of prisoners of war to promotion back pay and would like to know if any back pay was owed to her husband.  She further states, in effect, that she does not believe her husband's record to be in error; however, she knows of no other way to ascertain this, except by applying to the Army Board for Correction of Military Records.

3.  The applicant provides a self-authored statement, dated 6 January 2005; an undated application for Promotion Back Pay for Navy, Marine Corps POWs during World War II; copies of her husband's Honorable Discharge Certificate from the Army of the United States, effective 27 April 1946; Certificate of Death, issued 31 December 1997; Marriage Certificate, dated 23 May 1950; War Department, Officer of the Adjutant General letter, dated 4 June 1942; two Imperial Japanese Army POW postcards from her husband; VA Form 2507 (Request for Physical Examination), dated 18 June 1946; and VA Form 21-4138 (Statement in Support of Claim), dated 28 November 1974.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 27 April 1946, the date of her husband's discharge.  The application submitted in this case is dated 6 January 2005.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.




3.  The former service member's (FSM) military records were lost or destroyed in the 1973 fire at the National Personnel Records Center.  Information herein was derived primarily from documents provided by the applicant and limited documentation that has been placed in the FSM's service records since the fire at the NPRC.

4.  The FSM's Enlisted Record and Report of Separation - Honorable Discharge shows that he enlisted on 3 September 1940 and served in the Asiatic-Pacific Theater of Operations (APTO) from 11 January 1942 to 21 September 1945.  He was honorably discharged in the grade of private first class on a partial service record and an affidavit from the Soldier on 27 April 1946.  His awards include the Asiatic-Pacific Campaign Medal with 3 bronze service stars, American Defense Service Medal with 1 bronze service star, World War II Victory Medal, American Theater Campaign Medal, Philippine Defense Service Medal with 1 bronze service star, Good Conduct Medal, Purple Heart, World War II Honorable Service Lapel Button, 7 Overseas Service Bars, and 1 Service Stripe.

5.  The FSM's service record contains a telegram from the War Department to the FSM's father on 20 November 1942 confirming that the applicant, then a Private with Battery F, 2nd Battalion, 131st Field Artillery, 36th Division, was a POW of the Japanese government.  The FSM's application for the POW Medal, dated 6 December 1988, shows that he was a captive from 8 March 1942 to
29 August 1945.  He was awarded the POW Medal on 12 January 1989.

6.  The FSM's service record also contains WD Form 372A (Final Payment Work Sheet), dated 27 April 1946.  This document shows the FSM's rank as "PFC" and provides details of his final payment at the time of his separation.  The FSM also certified and signed this final payment document.

7.  Army Regulation 615-5 (Enlisted Men - Appointment and Reduction of Noncommissioned Officer and Privates, First Class), Change No. 6, dated
23 May 1945, provided, in pertinent part, that commanders may waive the requirements of an authorized vacancy to appoint temporarily to the next higher grade any enlisted person below the first pay grade who is returned to United States military control from a status of: (1) internee, (2) missing in action, (3) evading capture in enemy held territory, or (4) prisoner of war (including those repatriated under the provisions of the Geneva Convention), and who presumably would have been promoted except for his internment, evasion or capture, provided that the circumstances surrounding the individual's loss to the Army of the United States were honorable.

8.  War Department, The Adjutant General's Office, Letter AG 383.6 (Procedures for Processing, Return, and Reassignment of Recovered Personnel (Short Title:  POW)), dated 31 May 1945, provided additional guidance on the policy for an immediate one grade advancement of those individuals who presumably would have been advanced in grade but for their loss to United States military control.

9.  Title 50, U.S. Code, Appendix § 2005 provides, generally, that a war claim commission established by congress is authorized to receive, adjudicate according to law, and provide for the payment of any claim filed by any POW for compensation for the violation by the enemy government by which he was held as a POW, or its agents, of its obligation to furnish him the quantity or quality of food and humane treatment to which he was entitled as a POW under the terms of the Geneva Convention of July 27, 1929.  Amendment to the War Claims Act extended the deadline for filing World War II POW claims to 1 August 1954.

10.  Public Law 104-201, further extended the deadline for filing POW claims to one year beyond 23 September 1996 for persons awarded the POW Medal who did not previously receive compensation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she may be entitled to POW promotion back pay because her husband was a POW of the Japanese government for 42 months during World War II.  She further contends that she is not certain the POW promotion back pay is owed her by the government, but merely wants to obtain a determination from the Board.

2.  The applicant provides a self-authored statement, copies of the FSM's discharge, marriage, and death certificates, along with documents relating to the FSM's POW status.  These documents provide evidence that the FSM was a private when he was captured and taken POW on 8 March 1942 and that he was returned to military control on 29 August 1945.

3.  Evidence of the FSM's military service record confirms that he was a private when captured and taken as a POW by the Japanese government on
8 March 1942.  The FSM's military service record also indicates that he was promoted to private first class subsequent to being returned to military control.

4.  Army regulation, in effect at the time, provided for the promotion of POW upon return to military control.  The purpose of this policy was to provide a means whereby the services and sacrifices of certain military personnel may be recognized through promotion.

5.  The Army adopted a policy of giving special consideration toward promotion of a recovered POW.  If the Army considered that the Soldier would have been promoted during the past months had the Soldier not been a POW, and if the Soldier qualified for a higher grade, the Soldier was given a one grade promotion. If it considered the Soldier would have been promoted more than once, a further opportunity for advancement was given the Soldier after assignment to his new station.

6.  Evidence of record shows that the FSM was discharged on 27 April 1946 and received final payment as a private first class, which confirms that he was promoted in accordance with Army policy upon return to military control from a POW status.  Therefore, the applicant is not entitled to POW promotion back pay.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 27 April 1946, the date of his discharge.  Based on the date the Board was established, 2 January 1947, the time for the applicant to file a request for correction of any error or injustice expired on 1 January 1950.  Public Law 104-201, further extended the deadline for filing POW claims to one year beyond 23 September 1996 for persons awarded the POW Medal who did not previously receive compensation.  However, neither the FSM nor his spouse filed within the 3-year statute of limitations of the extended deadline for filing POW claims, and a compelling explanation or evidence has not been provided to show that it would be in the interest of justice to excuse failure to file.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__TSK __  ___PHM_  __CAK __  DENY APPLICATION








BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




____TED S. KANAMINE___
          CHAIRPERSON



INDEX

CASE ID
AR20050000816
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20051013
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19460426
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
128.0000.0000
2.
130.0000.0000
3.

4.

5.

6.