PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           19 October 2000                  
	DOCKET NUMBER:   AR2000044302

	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	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest W. Lutz, Jr.		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. Tracey L. Pinson		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)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests award of the Purple Heart.

3.  The applicant states, in effect, that recent law entitles him to the Purple Heart for injuries received at the hands of the Japanese during his confinement as a prisoner of war from 7 May 1942 to 2 September 1945.  He contends that the law was passed subsequent to the capture of three U.S. soldiers recently awarded Purple Heart medals for enduring beatings during one month of captivity.  He also contends that he is the survivor of the Bataan Death March.  In support of his application, he submits numerous letters of explanation; a copy of his WD AGO Form 53-55 (Enlisted Record and Report of Separation); VA documentation; and four eyewitness statements attesting that the applicant was injured by Japanese guards during his internment. 

4.  The applicant’s military records were destroyed or lost during the National Personnel Records Center fire of 1973.  Records available to the Board were obtained from alternate sources and show that the applicant enlisted on
16 September 1940.  He served as a tank crewman in the Asiatic-Pacific Theater of Operations from 20 November 1941 to 15 October 1945 and was honorably discharged on 11 May 1946. 

5.  The applicant’s discharge document, which was authenticated in his own hand, does not show the Purple Heart as an authorized award. 

6.  There is no evidence in the available records which shows the applicant was awarded the Purple Heart or was wounded as a result of hostile action.  Item 
34 (Wounds Received in Action) of the applicant’s WD AGO Form 53-55 states “None”. 

7.  The applicant provided four eyewitness statements attesting that the applicant was beaten on numerous occasions by the Japanese while detained as a prisoner of war. 

8.  Records show that the applicant was a prisoner of war from 7 May 1942 to 
2 September 1945.   

9.  Army Regulation 600-8-22 (Military Awards) 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.

10.  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.

11.  Army Regulation 600-8-22 provides, in pertinent part, for award of the Prisoner of War Medal.  The regulation states that the Prisoner of War Medal was authorized on 8 November 1985 and is awarded to individuals who in past armed conflicts were taken prisoner or held captive.

CONCLUSIONS:

1.  The Board noted the applicant’s contention that recent law entitles him to the Purple Heart.  However, the National Defense Authorization Act of 1996 only authorized award of the Purple Heart to former prisoners of war who were wounded as a result of hostile action before 25 April 1962 while held as a prisoner of war or while being taken captive.

2.  The Board also noted the eyewitness statements submitted on behalf of the applicant.  However, these statements are not sufficient as a basis for award of the Purple Heart in view of the evidence of record which shows the applicant was not wounded as a result of hostile action.

3.  There is no evidence of record available to the Board which shows the applicant was wounded or treated for wounds as a result of hostile action or that he was wounded as a result of hostile action while held as a prisoner of war or while being taken captive during World War II.  Therefore, he is not entitled to award of the Purple Heart.

4.  The applicant was a prisoner of war from 7 May 1942 to 2 September 1945.  Therefore, he is entitled to award of the Prisoner of War Medal and correction of his discharge document to show this medal. 

5.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was awarded the Prisoner of War Medal.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

EWL____  CJP____  TLP_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Ernest W. Lutz, Jr.____
		        CHAIRPERSON

INDEX

CASE ID	AR2000044302	
SUFFIX		
RECON		
DATE BOARDED	20001019	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	19460511	
DISCHARGE AUTHORITY	AR 615-365  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	107.0015	
2.	107.0029	
3.		
4.		
5.		
6.