MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           6 February 2001                 
	DOCKET NUMBER:   AR2000041792

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

	Mr. Carl W. S. Chun		Director	
	Mr. W. E. Schnupp		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Thomas Lanyi		Member	
	Mr. Walter T. Morrison		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that he be paid $2.50 for each day he was a prisoner of war (POW), that he be promoted to the grade of technical sergeant and that his Enlisted Record and Report of Separation (WD AGO Form 53-55) be corrected to show all of the awards to which he is entitled and that he was assigned to the 97th Infantry Division.

APPLICANT STATES:  That he was not aware that he could receive payment for the time he spent in captivity until it was brought to his attention by another ex-POW.  He believes that he was not given the rank of technical sergeant for being a radio operator for his company when he joined the 104th Infantry Division. He says that his captain failed to put him in for the promotion.  Also, his WD AGO Form 53-55 does not show that he was awarded the Combat Infantryman Badge (CIB), the Bronze Star Medal (BSM) or the POW Medal and does not reflect that he was assigned to the 97th Infantry Division from March 1943 to August 1943.

In support of his request, he submits a copy of his WD AGO Form 53-55; a copy of his Separation Qualification Record (WD AGO Form 100); a copy of a BSM Certificate showing him as the recipient; a letter informing him that he had been awarded the CIB; a letter advising him that he had been awarded the POW Medal; a Western Union telegram informing his spouse that he was a POW of the German government; and a copy of a letter from the Defense Finance and Accounting Service (DFAS) awarding compensation to another soldier for the period of that soldier’s POW confinement during World War.

EVIDENCE OF RECORD:  The applicant's military records were lost or destroyed in the 1973 fire at the National Personnel Records Center.  Information herein was derived from documents provided by the applicant.

His WD AGO Form 53-55 shows that he was inducted on 3 February 1943 and served in the European Theater of Operations (ETO) from September 1944 to June 1945.  He was honorably discharged with a Certificate of Disability for Discharge on 21 December 1945 in the grade of private first class.  His awards include the Good Conduct Medal, the World War II Victory Medal, the American Campaign Medal, the European-African-Middle Eastern Campaign Medal, the Purple Heart, the Sharpshooter Badge with Rifle Bar and the World War II Honorable Service Lapel Button.  The CIB is reflected on his WD AGO Form 100 but is not shown on the WD AGO 53-55.

Documents provided by the applicant show that he was awarded the BSM for meritorious achievement in the ETO on or about 1 December 1944 and that he was also awarded the CIB effective 29 October 1945.

A telegram from the War Department to his wife on 9 April 1945, informed her that the applicant, then a private with the 104th Infantry Division, was a POW of the German government.  He was awarded the POW Medal on 19 May 1988.
His application for the POW Medal shows that he was a captive from 29 November 1944 to 13 April 1945

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.  

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.

Technical Manual 12-235, Discharge Procedures and Preparation of Separation Forms, the regulation then in effect, provides that item 6 (Organization) of the WD AGO Form 53-55 will show the last unit or similar element to which he was assigned, rather than the element of which he was a part while moving to a separation activity.  The designation of the organization will be as shown in the Service Record.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The time for filing a claim for World War II POW benefits initially expired on 1 August 1954.  That filing date was later extended to one year beyond 23 September 1996 for those who had not previously received compensation. Unfortunately, his application is dated 5 May 2000, well beyond the statutorily established deadline for such filings.

2.  Based on the applicant’s statement that his commander in the 104th Infantry Division did not formally recommend him for promotion to technical sergeant and considering that there are no service records available to otherwise substantiate his claim, there is no reasonable basis for this Board to conclude that he was eligible for such a promotion.  Moreover, it is noted that at the time of his assignment with the 104th Infantry Division (prior to his captivity) he was a private.  Any promotion would normally have been to the next higher grade of private first class and not technical sergeant, which would have amounted to a four-grade advancement.

3.  Instructions for completing separation documents at the time of his discharge provide that the last unit of assignment would be shown on the WD AGO Form 53-55.  Since he was assigned to the 97th Infantry Division before his assignment to the 104th Infantry Division, it appears that the discharge correctly reflects his last assignment, the 413 Infantry Regiment, 104th Infantry Division, so there is no reason to change it.

4.  Insofar as his request to show all awards on his separation document is concerned, it would be appropriate to issue a correction to his WD AGO Form 53-55 showing that he was awarded the CIB, the BSM with 1st Oak Leaf Cluster (representing his award of the BSM for meritorious achievement in the ETO and a second BSM for award of the CIB) and the POW Medal.  The Army Review Boards Agency Support Division, St. Louis will be asked to issue a correction to his separation document showing the above awards.  

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

NOTE: The Army Review Boards Agency Support Division, St. Louis is requested to issue a correction to the applicant’s separation document showing that he was awarded the CIB, the BSM with 1st Oak Leaf Cluster and the POW Medal.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___rvo___  ___tl  ___  ___wtm _  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000041792	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010206	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.  107.00		
2.		
3.		
4.		
5.		
6.