PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            21 November 2000                  
	DOCKET NUMBER:   AR2000044941

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Thomas A. Pagan		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Thomas E. 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)

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 that the records of her spouse, a deceased former servicemember (FSM), be awarded the Purple Heart.  She states that he was wounded from a shell explosion during the Battle of the Bulge, was a prisoner of war (POW), and had "shrapnel scars" on his hands.  In support of her request she submits a "diary" and copies of the FSM’s VA medical records.

3.  The FSM’s military personnel file was apparently lost or destroyed during the 1973 fire at the National Personnel Records Center in St. Louis, Missouri.  Information contained herein was reconstructed from alternative sources, including information provided by the applicant.

4.  The FSM entered active duty on 28 December 1942 and arrived overseas in October 1944.  According to information provided by the servicemember in 1988, as part of an application for the POW Medal, enemy forces captured him on      19 December 1944.  He was released on 10 May 1945 and returned to the United States on 15 May 1945.  He was awarded the POW Medal in          August 1988.

5.  On 22 August 1945 the FSM was honorably discharged with a certificate of disability for discharge.  A copy of the original certificate of disability for discharge, contained in his reconstructed personnel file, indicates he was discharged based on a gastric and duodenal ulcer, which was diagnosed on       9 June 1945.  

6.  A 28 August 1945 letter from the VA notes the FSM was granted a service connected disability rating for his ulcer and while his "left ear disability" was not at a compensable degree, the disability was established as service connected.

7.  The FSM’s subsequent VA records indicate his hearing loss was consistent with a blast injury, which the FSM consistently indicated occurred "two or three days" prior to his being captured by enemy forces.  

8.  The "diary" submitted by the applicant in support of her request appears to be a written narrative rendered by the servicemember, subsequent to his separation from active duty, as one of the final entries states "I suffered from malnutrition and many many other ailments over the years.  The enclosed medical records should be self explanatory."  He did note, however, in the narrative, that at the time he was captured he was "suffering from bleeding in both ears…as a result of a German shell explosion."

9.  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 post 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 or war, or while being taken captive, in the same manner as a former prisoner of war who was wounded on or after that date.

CONCLUSIONS:

1.  The evidence available to the Board indicates that the FSM did sustain hearing loss associated with his military service and a medical official confirmed that his disability was consistent with a blast injury.

2.  It is very probable that the FSM was not originally awarded the Purple Heart because of the World War II prohibition against awarding the Purple Heart for wounds or injuries sustained while a POW or while being taken captive.

3.  The Board concludes that sufficient evidence exists to conclude that the FSM was injured as a result of hostile action during World War II and as such it would be appropriate, and in the interest of justice, to award the FSM the Purple Heart.

4.  In view of the foregoing, the records of the FSM should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected 
by awarding the FSM the Purple Heart for injuries sustained as a result of hostile action during World War II.

BOARD VOTE:  

__tap___  ___rwa_  __teo___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000044941	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001121	
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.