Record of proceedings in the case of



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RECORD OF PROCEEDINGS

IN THE CASE OF:

BOARD DATE: 27 MAY 2004

DOCKET NUMBER: AR2003094250

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. Kenneth H. Aucock




Analyst

The following members, a quorum, were present:







Mr. Melvin Meyer




Chairperson




Ms. Regan Smith




Member




Mr. Thomas O'Shaughnessy




Member

The applicant and counsel if any, did not appear before the Board.


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 applicant requests that her deceased husband, a former service member (FSM) be awarded the Purple Heart and the Prisoner of War (POW) Medal.
2. The applicant states that the FSM was captured on 9 April 1942 in the Bataan area of the Philippine Islands and was in the Bataan Death March. The applicant's DD Form 214 (Report of Transfer or Discharge) does not show award of the Purple Heart or the POW Medal. The FSM had requested consideration from the Department of the Army Awards Branch with no satisfaction. The FSM was aware of the injustice [of not receiving the Purple Heart]; however, he was busy raising a family, and then his health took a downward turn [consequently, he did not pursue the matter].
3. The applicant provides a copy of a 21 April 1997 letter to the FSM from the Total Army Personnel Command (PERSCOM) Military Awards Branch, a copy of a letter from the applicant's counsel to this agency and the reply thereto, a copy of PERSCOM's 7 January 2003 letter to the applicant's counsel, a copy of counsel's 10 December 2002 letter to the PERSCOM Military Awards Branch, a copy of the FSM's 31 January 1960 DD Form 214, a copy of a document citing the eligibility requirements for the Purple Heart for a POW, a copy of a statement from a former Dutch medical corps officer in which he explained the horrors troops underwent in the average Japanese imprisonment camp, and a copy of two precedent cases, wherein two former POWs were awarded the Purple Heart by the Navy for the injuries they received at the hands of the Japanese. Also included is a copy of the FSM's biographical data, which indicates that he was in the Bataan Death March, was interred at Camp O'Donnell and Cabanatuan Camp 3 in the Philippines, and Camp 17 and Omuta in Japan. Included are copies of Department of Veterans Affairs (VA) rating decisions, and a copy of a certificate of death showing that the FSM passed away on 27 February 2002.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel requests award of the Purple Heart and the POW Medal for the FSM.
2. In his 10 December 2002 letter to the PERSCOM Military Awards Branch, counsel states that while there was no question that the FSM was a POW, there should also be no question that the applicant received severe inhumane treatment and life threatening atrocities, and that it is the intent of Executive Order 11016 to award the Purple Heart to prisoners of war for the maltreatment and horrors committed upon them in captivity. He cites a recent case of four soldiers captured in Kosovo and repatriated a few days later, stating that without delay and without question they were awarded the Purple Heart.
3. Counsel provides the documents depicted above.

CONSIDERATION OF EVIDENCE:
1. The FSM enlisted in the Army on 10 August 1937 and reenlisted in 1940 for assignment to the Philippine Islands.
2. On 5 January 1943 The Adjutant General informed the FSM's mother that he was a prisoner of war of the Japanese government in the Philippine Islands. A 25 September 1943 casualty report indicates that the FSM was transferred from the Philippines to the Fukuoka camp [in Japan].
3. A summary concerning the FSM's internment prepared by Headquarters United States Army Forces Western Pacific shows that he was transferred to Cabanatuan POW hospital #1 on 1 May 1943 and returned to duty on 22 May 1943. He was transferred to western Japan in July 1943 and was interned in Fukuoka Camp #17.
4. Medical records completed while the applicant was a prisoner of war in Japan indicate that he labored as a coal miner, and was treated for various injuries and ailments while a POW at the Fukuoka camp. Those included treatment for various infections, fever, a boil to his shoulder, an injury to his left hand when he struck his hand against a rock, lacerations and abrasions to his fingers when a coal wall collapsed on his forearm and hand, tonsillitis, laryngitis, cough, bronchitis, and diarrhea.
5. A 26 September 1945 War Department Battle Casualty Report shows that the applicant was returned to military control from Fukuoka on 13 September and that his condition was fair. That report shows that he was a former member of the 31st Infantry [Regiment].
6. On 14 September 1945 the FSM completed an "Affidavit for Military Personnel Other than Philippine Army." In so doing, he entered certain identifying data, e.g., name, place of birth, name of parent; and military data, e.g., unit, enlistment information, authorized deductions from pay, etc. He indicated that he was a coal miner from August 1943 to August 1945 [while a POW], and that he surrendered to Japanese forces on 9 April 1942 and was released at Omuta, Kyushu Shima from Camp #17 Fukuoka District. That affidavit provided for information concerning any wounds that he received and any illnesses he had contracted. He stated that he had malaria on Bataan from February 1942 to October 1942. He did not indicate any wounds or any other illnesses.
7. A 25 September 1945 endorsement to The Adjutant General indicates that the applicant was a beleaguered POW from 9 April 1942 to 12 September 1945.
8. In a 14 May 1946 letter, The Adjutant General informed the FSM's commanding officer that he had reenlisted on 30 January 1940, at which time he had completed 2 years and 4 months of service, that he was assigned on 10 February 1941 to Company I, 31st Infantry in the Philippine Islands, and that he was reported missing in action on 7 May 1942 and as a prisoner of war on 31 December 1942. That letter indicated that the FSM was entitled to battle participation credits for service in the Philippine Islands from 7 December 1941 to 7 May 1942, the Distinguished Unit Badge with one oak leaf cluster, the American Defense Ribbon with one bronze service star, and the Asiatic-Pacific Ribbon with one bronze service star.
9. The FSM's service record shows that he was authorized the Asiatic-Pacific Theater Ribbon with two bronze service stars, the Philippine Defense Ribbon with one bronze service star, and the Distinguished Unit Badge with two oak leaf clusters.
10. On 27 May 1946 the FSM requested award of the Combat Infantryman Badge and the Purple Heart. In so doing he stated that he was a platoon sergeant with Company I, 31st Infantry Regiment, engaged in combat with the Japanese in the Battle of Bataan and was taken prisoner on 9 April 1942. He stated that he received very severe mistreatment and suffered malnutrition from the Japanese during imprisonment. In response thereto, he was informed that the Purple Heart could not be awarded to former prisoners of war for wounds or injuries received as the result of enemy brutality while in a POW status and that the policy included beatings by enemy guards and hostile civilians, and injuries incurred while performing forced labor. He was told that his request could not be approved. He was, however, awarded the Combat Infantryman Badge effective 1 January 1944.
11. The FSM was discharged on 27 May 1946. His WD AGO Form 53-55 (Honorable Discharge) shows award of the American Defense Service Medal with one bronze service star, the American Theater Campaign Ribbon, the Asiatic-Pacific Campaign Ribbon with two bronze service stars, the Philippine Defense Ribbon with one bronze service star, the Good Conduct Medal, and the Distinguished Unit Citation with two oak leaf clusters.
12. The FSM continued his service and on 31 July 1949 was appointed a warrant officer junior grade in the Regular Army. He served in Korea during the Korean War with the 78th Anti-Aircraft Artillery Gun Battalion and participated in five campaigns. The 78th was awarded the Republic of Korea Presidential Unit Citation for its actions during his assignment to that organization.
13. By virtue of his award of the Combat Infantryman Badge, on 15 January 1953, The Adjutant General awarded him the Bronze Star Medal for exemplary conduct in ground combat.

14. The FSM was awarded the Commendation Ribbon with Medal Pendant by the 6th Region, United States Army Air Defense Command, for meritorious service from 27 November 1954 to 19 November 1958.


15. The applicant retired from the Army on 31 January 1960 with over 22 years of service. His DD Form 214 shows award of the Bronze Star Medal, the Korean Service Medal, the United Nations Service Medal, the National Defense Service Medal, and the Commendation Medal with Medal Pendant.
16. Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained 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, and the medical treatment must have been made a matter of official record.
17. 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. These injuries were considered to be the result of war crimes and not the result of a legal action of war. War Department policy, at that time, 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 prisoners of war, 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 prisoners of war 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, as part of the National Defense Authorization Act (NDAA) of 1996 Congress authorized award of the Purple Heart to any former prisoner of war who was wounded before 25 April 1962 while held as a prisoner of war, or while being taken captive, in the same manner as a former prisoner of war who was wounded on or after that date.
18. Army Regulation 600-8-22 provides, in pertinent part, for award of the POW Medal. The regulation 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.
19. The Unit Citation and Campaign Participation Credit Register shows that the 31st Infantry Regiment was awarded the Philippine Presidential Unit Citation for its actions while the FSM was assigned to that organization.
20. Service (campaign) medals and service ribbons denote honorable performance of military duty within specified limited dates in specified geographical areas. Army Regulation 600-8-22, paragraph 6-7 provides for service stars for wear on campaign and service ribbons to denote an additional award, and states that service stars are authorized for wear on the Korean Service Medal. A silver service star is worn instead of five bronze service stars.
21. As a matter of information, on the occasion of the 50th anniversary of the Korean War, the Government of the Republic of Korea issued the Korean War Service Medal to pay tribute to eligible Korean War veterans for their historic endeavors to preserve the freedom of the Republic of Korea and the free world. On 20 August 1999, the Department of Defense approved acceptance and wear of this foreign award to eligible US veterans of the Korean War, or their surviving next of kin. The medal is provided at no cost to the veterans.
22. The Department of Defense has assigned responsibility to the Department of the Air Force for distribution of the Korean War Service Medal to eligible veterans or their surviving next of kin. To apply, veterans or their next of kin must provide a copy of their discharge paper (DD Form 214) to the Awards and Decorations Section, Headquarters, Air Force Personnel Center, 550 C Street West, Suite 12, Randolph Air Force Base, Texas 78150-4714. A sample request form is being provided to the applicant. Once the Korean War Service Medal has been authorized by the Department of the Air Force, the applicant may apply to the Army Board for Correction of Military Records to add this foreign award to her husband's DD Form 214.
DISCUSSION AND CONCLUSIONS:
1. The FSM's internment, deprivation, illnesses, and injuries are well documented. He was a prisoner of war for over three years, first in the Philippines and then in Japan, working as a coal miner. Nonetheless, and notwithstanding his illnesses and accidental injuries, there is no evidence to indicate that he was beaten or wounded by his captors. There is insufficient evidence to grant the applicant's request for posthumous award of the Purple Heart for her late husband.
2. The FSM was a prisoner of war. His records should reflect award of the POW Medal.
3. The FSM's records should reflect award of the World War II Victory Medal.
4. The FSM participated in five campaigns during the Korean War. His records should reflect award of the Korean Service Medal with one silver service star.
5. The FSM was awarded the Combat Infantryman Badge, the Good Conduct Medal, the American Defense Service Medal with one bronze service star, the American Campaign Medal, the Asiatic-Pacific Campaign Medal with two bronze service stars, the Philippine Defense Ribbon with one bronze service star, the Presidential Unit Citation (formerly the Distinguished Unit Badge) with two oak leaf clusters, the Philippine Presidential Unit Citation, and the Republic of Korea Presidential Unit Citation.
BOARD VOTE:
__MM __ ___RS __ ___TO _ GRANT 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 showing award of the POW Medal, the World War II Victory Medal, the Korean Service Medal with one silver service star, the Combat Infantryman Badge, the Good Conduct Medal, the American Defense Service Medal with one bronze service star, the American Campaign Medal, the Asiatic-Pacific Campaign Medal with two bronze service stars, the Philippine Defense Ribbon with one bronze service star, the Presidential Unit Citation with two oak leaf clusters, the Philippine Presidential Unit Citation, and the Republic of Korea Presidential Unit Citation.

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 award of the Purple Heart.


_____Melvin Meyer________

CHAIRPERSON



INDEX


CASE ID

AR2003094250

SUFFIX




RECON

YYYYMMDD

DATE BOARDED

20040527

TYPE OF DISCHARGE

(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)

DATE OF DISCHARGE

YYYYMMDD

DISCHARGE AUTHORITY

AR . . . . .

DISCHARGE REASON




BOARD DECISION

GRANT

REVIEW AUTHORITY




ISSUES 1.

107.00

2.




3.




4.




5.




6.





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