MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:  

		BOARD DATE:          23 September 2003
		DOCKET NUMBER:  AR2003090962

	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. Klaus P. Schumann		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Patrick H. McGann		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:  That he be awarded the Purple Heart for injuries received while he was a prisoner of war during World War II.

APPLICANT STATES:  That he is entitled to the Purple Heart for the tortuous physical abuse and inhumane treatment he received while a prisoner of war in Germany during World War II.  Specifically, he contends that because of his resistance he was singled out and physically abused by German guards causing him to suffer excruciating pain, lacerations, bruises, and suffering.

The applicant submitted no additional documentation in support of his application.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant's records have been lost or destroyed.  The applicant's records do not contain his WD AGO 53-55 (Enlisted Record and Report of Separation and Honorable Discharge).

This case is being considered based on reconstructed records, which consist primarily of the applicant's WD AGO 100 (Separation Qualification Record), VA Form 60-3101-3 (Request for Information) various clinical records briefs from the applicant's medical records, a War Department Form 372 (Final Payment - Work Sheet), and various written communications between the applicant, a Veterans Administration Service Officer and the National Personnel Records Center. 

The applicant's records show that he entered active duty as a Motor Transportation Operator on 18 October 1938.  He was a prisoner of war from 14 March 1943 to 4 March 1945.  He was honorably separated from active duty on 30 September 1945.

There are no orders in the applicant’s service personnel records, which show that he was awarded the Purple Heart.  There also is no evidence in his records that he was wounded or treated for wounds as a result of hostile action.

The applicant's records contain a letter dated 1 May 2003 from the National Personnel Records Center to Veterans Administration Service Officer, which shows that the applicant was awarded the Prisoner of War Medal, the Good Conduct Medal, and the World War II Victory Medal.

The applicant's records contain several copies of Medical Department Form 55A (Clinical Record Brief) which depict the applicant's treatment for a Pilonidial Cyst for an extended period of time in 1942.  There is no evidence that this treatment was for wounds received as a result of hostile action.

The applicant's records contain a Hospitalization File Listing for 1942 from the United States Army Surgeon General's office which indicates that the applicant was treated for Synovitis in his knee in September 1942.  There is no evidence that this treatment was for wounds received as a result of hostile action.

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.

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.

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.  There is no evidence of record, and the applicant has provided no evidence, which shows he was awarded the Purple Heart or that he was wounded or treated for wounds as a result of hostile action.

2.  The Board noted that the only medical documents contained in the applicant's records indicate he was treated for synovitis in the knee and a Pilonidial Cyst.  These documents precede his capture as a prisoner of war and do not show that the applicant was wounded or injured as a result of hostile action.
3.  In the absence of any other corroborating evidence of record, which shows that the applicant was wounded or injured as a result of hostile action, these medical documents are not sufficient as a basis for award of the Purple Heart.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that he record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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

___JLP__  __AAO__  ___PHM _  DENY APPLICATION

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

INDEX

CASE ID	AR2003090962	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
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.PH	107.0015.0000	
2.		
3.		
4.		
5.		
6.