MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:          27 August 2002
	DOCKET NUMBER:  AR2002073600

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Thomas Lanyi		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:  Reconsideration of his earlier appeal to correct his  military records by awarding him the Purple Heart (PH). 

APPLICANT STATES:  In effect, that when a soldier is a prisoner of war (POW) for many months as he was, and was placed in solitary confinement more than once, it is reasonable to believe that there would be beatings of that prisoner.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR2001064458) on 28 February 2002.

In support of his request for reconsideration the applicant submits a Department of Veterans Affairs (DVA) medical assessment, dated 25 August 1987, which indicates that the applicant suffered a "Blow to right side of neck and right shoulder from rifle butt World War II in prisoner of war camp Germany."  He was said to suffer from osteoarthrosis of his right shoulder and cervical spine secondary to trauma of rifle butt blow in WWII.

Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for wounds 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 by a medical officer, and the medical treatment must have been made a matter of official record.

During World War II, the Purple Heart was not awarded to soldiers who had been injured while in captivity as a result of enemy maltreatment or brutality.  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 has been considered several times.  However, 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 of 1996 Congress authorized award of the Purple Heart to any former POW who was wounded before 25 April 1962 while held as a POW, or while being taken captive, in the same manner as a former POW who was wounded on or after that date.

The DVA assessment is new evidence that requires Board consideration.

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

1.  While the DVA had recorded that it had received information that the applicant was hit by a rifle butt in his neck and shoulder while a POW, the DVA did not state where it derived that information.  That information very well may have been based solely on a history provided by the applicant, himself.
 
2.  Without documentary evidence to show that the applicant was wounded while a POW, he is not entitled to the PH.  

3.  The applicant's contention that a soldier who is a POW for a prolonged period must be presumed to have been wounded by his captors is not in keeping with the regulatory requirements for award of the PH or the National Defense Authorization Act of 1996.  

4.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__inw____  ___aao _  ___tl____  DENY APPLICATION

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

INDEX

CASE ID	AR2002073600	
SUFFIX		
RECON	AR2001064458	
DATE BOARDED	20020827	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	107.00	
2.		
3.		
4.		
5.		
6.