BOARD DATE: 17 January 2017 DOCKET NUMBER: AR20150015169 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 17 January 2017 DOCKET NUMBER: AR20150015169 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________x_____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 17 January 2017 DOCKET NUMBER: AR20150015169 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant, the wife of a former service member (FSM), with assistance from her Member of Congress, requests, in effect, correction of the FSM's records to show he was a prisoner of war (POW). She also requests a personal appearance before the Board. 2. The applicant states: * while serving in the Army during the Korean War, the FSM was stationed in Bad Tolz, West Germany, near the East-West German border * the FSM was kidnapped, imprisoned, and tortured, and eventually escaped; however, there is no record of his imprisonment * medical records show he was hospitalized for injuries suffered as a result of his imprisonment * despite the FSM's entire unit having knowledge of his kidnapping, only a few are still alive * the FSM's status as a former POW would speed his Aid & Assistance [Department of Veterans Affairs (VA) program], as the FSM is bedridden and in hospice care at home 3. The applicant provides: * Fiduciary's Probate Certificate/Conservatorship, from the State of Connecticut, dated 3 September 2015 * a letter from the National Personnel Records Center (NPRC), dated 12 September 2014 * a copy of the FSM's DD Form 214 (Report of Separation from the Armed Forces of the United States) * National Archives and Records Administration (NA) Form 13038 (Certification of Military Service) * several statements/affidavits of support * a letter to "Officer C.S.," by FSM's wife, dated 23 December 2013 * a letter from the State of Connecticut, Military Department - Personnel Records/Historical Department, subject: Military Record of (FSM), dated 16 June 2015 * a copy of the FSM's Standard Form 88 (Report Of Medical Examination) dated 4 February 1953 * Special Orders Number 79, issued by State of Connecticut, Military Department, The Adjutant General's Office on 19 June 1953 * Stamford Hospital medical document, dated 9 March 2009 * a VA Decision Letter, dated 5 September 2013 * a letter from Dr. K.B., Columbia University Medical Center, dated 9 June 2015 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's military records are not available for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center, St. Louis, Missouri in 1973. It is believed the FSM's records were lost or destroyed in that fire. This case is being considered using evidence provided by the applicant and the FSM's DD Form 214 and NA Form 13038 provided from the NPRC. 3. Unfortunately, the FSM's DD Form 214 is of such poor quality that the specifics of his military service, e.g., his dates of service, military occupational specialty, awards and decorations, etc., are not legible. The NPRC did provide a NA Form 13038 that reveals certain aspects of the FSM's military service: * he was a member of the National Guard of the United States * he served from 5 September 1950 to 3 February 1953 * he was honorably released from active duty in the rank as private 4. Due to the lack of records, the FSM's units of assignment cannot be validated or confirmed. 5. There is no official military documentary evidence that the FSM was captured by an enemy force during a period of armed conflict and held as a POW. 6. The applicant provides the following: a. A letter of support from Mr. A.G., dated 28 December 2012, with a notarized affidavit, stating he served with the FSM. He states the FSM was imprisoned in East Germany during the Korean War. He said the FSM confided in him about escaping and walking barefoot in the snow. Mr. A.G. states he was in intelligence and the Soldiers would be told about the "Commies" kidnapping them if they would get too close to the East-West [Germany] border. b. A letter of support from Mr. W.M., as told to the FSM's wife, with notarized affidavit, stating he was stationed with the FSM at Bad Tolz and spent off-duty time with him. He knows the FSM was kidnapped as he saw men grab him. He, Mr. W.M., was able to run away and never saw the FSM again. He learned almost a year later that he escaped from an East German prison. c. A letter of support from Mr. B.E., as told to the FSM's wife, with notarized affidavit, stating he served with the FSM with the 192nd Battalion, which was called to active duty from the National Guard when the Korean War broke out. He and the FSM were shipped to Bad Tolz, West Germany, in November 1951. He knows unconditionally that the FSM was kidnapped and held as a prisoner in East Germany, because the FSM was married at the time to his niece. He was not on the ship that returned to the U.S. and apparently after almost a year of imprisonment, he escaped. (An internet search revealed the 192nd was the 192nd Field Artillery Battalion, a National Guard unit that was called to active duty during the Korean crisis in August of 1950. It was sent to Germany in November of 1951, to become a member of the growing North Atlantic Treaty Organization (NATO) force in Western Europe.) d. A letter to "Officer C.S. [a National Service Officer – unknown organization]," by the FSM's wife, dated 23 December 2012 with auxiliary letters. The NSO requested the FSM's condition and experiences in the Army. It states, in pertinent part, the following: (1) FSM has lost most of his ability to speak because of Alzheimer's and frontal lobe dementia, has lost sight in one eye from a blood clot, and can barely walk. (2) He enlisted in the National Guard at Camp Drum and was sworn into the Army at the news of the Korean War on 25 June 1950. He was stationed in Bad Tolz, West Germany, with the "192d." About a year later, he was kidnapped and taken to a prison in East Germany. (3) He states he was tortured with cigarette burns on his shins, and shows white stretch marks at his armpits as a result of being hung form his hands. He also injured his hips and has arthritis. He still has nightmares of that time. (4) He escaped and walked back in the snow, and had trouble getting back into camp at Bad Tolz. He was shot in the arm and was told he was absent without leave and was thrown in jail. A fellow Soldier said his escape made the New York papers. e. A letter from the State of Connecticut, Military Department – Personnel Records/Historical Department, subject: Military Record of (FSM), dated 16 June 2015, provided the FSM the following records they had on file: Standard Form 88 and Special Orders Number 79. f. Standard Form 88 shows the FSM was given a separation examination on 4 February 1953. It noted the following at the time: (1) He was evaluated for sinus headaches and had an appendectomy scar that existed prior to service. (2) It lists a bad back with contusion for which he spent 10 days in the 98th General Hospital in Germany in October 1950. (3) It lists an unreadable two-letter (an abbreviation) diagnosis for which he spent 12 days in the 98th General Hospital in Germany in December 1950. (4) It lists treatment for a venereal disease at the 192nd Field Artillery Dispensary in January 1951. (5) It lists a fractured right ankle for which he spent 4 days at the 16th Field Hospital in Germany in March 1951. g. Special Orders Number 79, issued by the State of Connecticut, Military Department, The Adjutant General's Office on 19 June 1953. This order shows the FSM, having been released from active duty to State control, was honorably discharged from the Connecticut Army National Guard (CTARNG) by reason of expiration of term of service, in the rank/grade of private/E-2, effective 5 February 1953. h. A Stamford Hospital medical document, titled "Radiology Report," dated 9 March 2009, shows a brain scan was conducted on the FSM and the impression determined he had diminished activity consistent with Alzheimer's disease. i. A letter from the VA, Hartford Regional Office, dated 5 September 2013, details its decision on a claim by the FSM for compensation. The VA determined the FSM's medical conditions – Alzheimer's dementia; severe degenerative arthritis of the left and right hip; coronary atherosclerosis; and hypertension – were not due to military service, so service-connection could not be granted. j. A letter from a Dr. K.B., of Columbia University Medical Center, dated 9 June 2015, confirms that the FSM is a patient of hers and she has diagnosed him with frontotemporal degeneration that will continue to decline. REFERENCES: 1. Army Regulation 600-8-22 (Military Awards) states the POW Medal was authorized on 8 November 1985 and is awarded to individuals who, in past armed conflicts, were taken prisoner or held captive after 5 April 1917. a. The POW Medal is to be issued only to those U.S. military personnel and other personnel granted creditable U.S. military service who were taken prisoner and held captive: * while engaged in an action against an enemy of the United States * while engaged in military operations involving conflict with an opposing foreign force * while serving with friendly forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party * by foreign armed forces that are hostile to the United States, under circumstances which the Secretary concerned finds to have been comparable to those under which persons have generally been held captive by enemy armed forces during periods of armed conflict b. For purposes of this medal, past armed conflicts are defined as World War I, World War II, Korean War, Vietnam Conflict, Grenada, Panama, Southwest Asia Conflict, and Somalia. Hostages of terrorists and persons detained by governments with which the United States is not engaged actively in armed conflict are not eligible for the medal. 2. The Department of Defense Dictionary and Terminology Repository defines a POW as a detained person who, while engaged in combat under orders of his or her government, is captured by the armed forces of the enemy. 3. Army Regulation 15-185 (ABCMR) provides that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant's request to show her husband, a FSM, was a POW during his period of military service was carefully considered. 2. The available evidence shows the FSM served with a CTARNG unit from 5 September 1950 to 3 February 1953. Supporting documents reveal he served with the 192nd Field Artillery Battalion, which was activated and sent to West Germany in November 1951 as part of the growing NATO force in Western Europe. The exact dates of his service in West Germany are not known. 3. A Standard Form 88 shows the FSM was given a separation physical/examination on 4 February 1953. It reveals several medical conditions, to include sinus and back troubles, an appendectomy scar, a fully healed fractured right ankle, and an unreadable two letter (abbreviation) diagnosis; however, it does not show a gunshot wound. It further notes the FSM's treatment for some of these medical conditions at Army medical facilities during the time period of October 1950 to March 1951. It does not indicate the source or when these conditions exactly occurred. 4. The FSM was stationed in West Germany during the Korean War. However, the U.S. was not involved in any armed conflict in Eastern Europe during the time of his military service. POW is defined as a detained person who, while engaged in combat under orders of his or her government, is captured by the armed forces of the enemy. 5. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. A formal hearing may be authorized by the Board or by the ABCMR Director whenever justice requires. In this case, the evidence of record is sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015169 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015169 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2