AR20140000093

IN THE CASE OF:

BOARD DATE: 18 September 2014

DOCKET NUMBER: AR20140000093

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 daughter of a deceased former service member (FSM), requests, in effect, correction of his military records to show his promotion to major (MAJ) and all his awards and decorations. Specific awards include:

* World War II Victory Medal
* Purple Heart
* American Campaign Medal
* Asiatic-Pacific Campaign Medal
* Silver Star
* Presidential Unit Citation
* Bronze Star Medal
* American Defense Service Medal
* Prisoner of War (POW) Medal
* Philippines Defense Ribbon

2. The applicant states:

a. She would like her father’s records corrected to reflect his full military service and to request any decorations, awards, and promotions he was entitled to be restored. In May2010, she and her daughter contacted the National Personnel Records Center (NPRC) in the hope of obtaining her father’s records and replacements for his medals that were stolen from her home. The medals she would like replaced are the Asiatic-Pacific Campaign Medal with one bronze service star and the Presidential Unit Citation, formerly known as the Distinguished Unit Citation. They were informed by NPRC that her father’s records were virtually destroyed in the 1973 fire and there was not enough information to confirm any awards or promotions. They were advised to submit an application to the Army Board for Correction of Military Records (ABCMR).

b. She and her daughter have taken as much time as they could to research her father’s records and are providing numerous documents and personal accounts by his family, acquaintances, and friends that details his military career.

3. The applicant provides:

* two birth certificates
* a marriage certificate
* War Department (WD)Form52-1 (Report of Death)
* WDOMCForm1042 (Report of Interment – Cremated Remains)
* three letters
* General Orders (GO)Number 22
* nine documents related to the FSM’s appointment to and service in the U.S. Military Academy (USMA)
* seventeen pages from the Coast Artillery Journal
* nine pages of various news paper articles and telegrams
* five pages of photographs of the FSM
* two pages of photographs of various medals and military insignia
* a photograph titled Battery Hearn
* a page titled Davao Penal Colony
* a page titled Oryoku Maru Roster
* a page from a book titled Bunker’s War
* eight pages from a book titled Some Survived
* a page from a book titled Belly of the Beast
* a page from the 1940 U.S. Census
* a map
* a page titled MyArmyBenefits
* a page titled Serve Members Law Center
* an email

CONSIDERATION OF EVIDENCE:

1. Title10, U.S.Code, section1552(b), provides that applications for correction of military records must be filed within 3years after discovery of the alleged error or injustice. This provision of law also allows the 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 FSM’s military records are not available to the Board for review. A fire destroyed approximately 18million service members’ records at the National Personnel Records Center in 1973. It is believed that the FSM’s records were lost or destroyed in that fire. However, there were sufficient documents provided by the applicant for the Board to conduct a fair and impartial review of this case.

3. The available evidence shows the FSM attended the USMA from July 1929 to June 1933. He was appointed as a commissioned officer, Coast Artillery Corps, in the rank of second lieutenant on an unknown date in 1933.

4. Very few of the documents provided by the applicant are from an official War Department or military source. However, some of the official documents include/show:

a. Cadet Personnel Record, shows he was a cadet at the USMA, Class of 1933.

b. WD Form 52-1, dated 21September 1945. This form shows the FSM was reported in a beleaguered status from 8December 1941 to 6May 1942. He was reported absent or in a missing status from 7May 1942 until such absence was terminated by a report from the Japanese Government through the International Red Cross of POW status on 10December 1942. The POW status was terminated on 12September 1945 on which date evidence considered sufficient to establish the fact that he died in a POW camp on 1February 1945 was received by the Secretary of War from the Japanese Government through the International Red Cross. The WD Form 52-1 shows the FSM’s:

* Rank as captain (CPT))
* Arm or Service: Coast Artillery Corps
* Place of Death: Southwest Pacific Area
* Date of Entry on Current Active Service: 13June 1933
* Station of Deceased: Southwest Pacific Area
* Date of Death: 1February 1945
* Cause of Death: Non-Battle

c. WDOMCForm1042, dated 16January 1946, shows the FSM’s:
* Rank as CPT
* Organization: Headquarters (HQ), Philippine Department
* Branch of Service: Army
* Place of Death: Fukuoka POW Camp #22, Japan
* Cause of Death: [This item was left blank]

5. The applicant, in part, also provides:

a. WDGONumber22, dated 30April 1942, wherein the Presidential Unit Citation was awarded to units in the United States Forces in the Philippines for the Harbor Defenses of Manila and Subic Bays and Naval and Marine Corps Units while serving in the Philippines for outstanding performance of duty to units that included the 59thCoast Guard Artillery, and Headquarters and Headquarters Battery (HHB), Harbor Defenses of Manila and Subic Bays.

b. A letter, dated 2November 1945, wherein General MacArthur, Commander-in-Chief, U.S. Army Forces Pacific, expressed his sympathy to the FSM’s father for the death of the FSM while a POW. This letter listed the FSM’s rank as CPT.

c. A letter to the Adjutant General, dated 8July 1946, wherein Lieutenant Colonel (LTC)JHT, Commander, HQ, Harbor Defenses of Long Island Sound, FortH.G.Wright, NY, explained why the FSM’s emergency address was listed as his parent’s residence and not his widow’s residence. His widow was requesting the FSM’s decorations. He stated he did not know what the decorations were but he knew the FSM had been wounded so he would at least have the PurpleHeart and he had heard unofficially that he received the Silver Star (emphasis added) In addition, there would be several campaign medals he would have been entitled to. This letter listed the FSM’s rank as CPT.

d. A footnote from a book tilled Bunker’s War, published in 1996, wherein it listed the FSM as being the commander of HHB, Harbor Defenses and stated he died as a POW on 1February 1945 of colitis. His rank is shown as MAJ.

e. A printout from the MyArmyBenefits website titled Captive/POW, Missing in Action (MIA) Entitlement, undated, that describes benefits for Soldiers in a captive, POW, and MIA status. However, this printout describes current day entitlements and does not address Soldiers who were in those statuses during prior conflicts/wars.

f. A printout from the Service Members Law Center titled Law Review 802, dated January 2008, wherein it stated during World War II, Army officers were promoted while interned as POWs. When released, they received a lump sum payment of military salary accrued while interned including payment for the promotion.
g. A photograph of the FSM’s medals that are in possession of the applicant. These include the American Defense Service Medal, the Asiatic-Pacific Campaign Medal, the World War II Victory Medal, and the Presidential Unit Citation.

6. Army Regulation 600-8-22 (Military Awards) states:

a. The Bronze Star Medal may be made to eligible Soldiers who participated in the Philippine Islands Campaign between 7December 1941 and 10May 1942. Requirements for award of the Bronze Star Medal under this provision of the regulation are performance of duty on the island of Luzon or the Harbor Defenses in Corregidor and Bataan and award of the Distinguished Unit Citation (now known as the Presidential Unit Citation).

b. The SilverStar is awarded for gallantry in action against the enemy. The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

c. The American Defense Service Medal is awarded for service between 8September 1939 and 7December 1941 under orders to active duty for a period of 12months or longer.

d. The American Campaign Medal is awarded for qualifying service in the American Theater between 7December 1941 and 2March 1946. Qualifying service for this campaign medal includes permanent assignment outside the continental United States (OCONUS) but within the American Theater of Operations, or duty as a crewmember aboard a vessel sailing ocean waters for 30 consecutive or 60nonconsecutive days.

e. The Asiatic-Pacific Campaign Medal is awarded for service in the Asiatic-Pacific Theater of Operations between 7December 1941 and 2March 1946. Qualifying service for this award includes permanent assignment in the theater, service in a passenger or a temporary duty status for 30 consecutive or 60nonconsecutive days, or active combat against the enemy and awarded a combat decoration or furnished a certificate by the commanding general of a corps or higher unit showing actual participation in combat. A bronze service star is authorized with this award for each campaign a member is credited with participating in.

f. The WorldWarII Victory Medal is awarded for service between 7December 1941 and 31December 1946, both dates inclusive.

g. The POW Medal was authorized on 8November 1985 and is authorized for any person who, while serving in any capacity with the U.S. Armed Forces, was taken prisoner and held captive after 5April 1917. The POW Medal will only be awarded when the individual’s POW status has been officially confirmed and recognized as such by the Department of the Army.

h. The Philippine Defense Ribbon is awarded for service in the defense of the Philippines from 8December 1941 to 15June 1942, for participation in any engagement against the enemy in Philippine territory, in Philippine waters, or in the air over the Philippines or over Philippine waters.

7. Army Regulation 600-8-22 provides that the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action. Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound for which the award is made must have required treatment by medical personnel and records of medical treatment for wounds or injuries received in action must have been made a matter of official record. For those who became POWs during World War II, the Korean War and before and after 25 April 1962, the Purple Heart will be awarded to individuals wounded while prisoners of foreign forces, upon submission by the individual to the Department of the U.S. Army of an affidavit that is supported by a statement from a witness, if this is possible.

8. The Office of the Under Secretary of Defense issued a memorandum, dated 1October 2008, to the Secretaries of the Military Departments and the Chairman of the Joint Chiefs of Staff providing guidance authorizing award of the Purple Heart to qualifying prisoners of war who are killed or die while in captivity as prisoners of war. The Department advises that changing the eligibility criteria for the Purple Heart has merit for those prisoners of war, under circumstances establishing eligibility for the Prisoner of War Medal, who die while prisoners of war who are not otherwise eligible for the Purple Heart under the circumstances causing death.

9. Department of Defense Immediate Release Number845-08, dated 6October 2008, revised the PurpleHeart eligibility criteria to allow for the award to prisoners of war who die in captivity. The revised policy presumes that for service members who die in captivity as a qualifying prisoner of war, their death was the “result of enemy action” unless compelling evidence is presented to the contrary. The revised policy allows retroactive award of the PurpleHeart to qualifying prisoners of war since 7December 1941. Posthumous awards will be made to the deceased service member’s representative, as designated by the Secretary of the Military Department concerned, upon application to that Military Department.

10. Department of the Army (DA) Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) was published to assist commanders and personnel officers in determining or establishing the eligibility of individual members for campaign participation credit, assault landing credit, unit citation emblems, and occupation duty credit for WorldWarII. This pamphlet shows Headquarters and Headquarters (HHC), Philippine Detachment, was credited with participation in the Philippine Islands Campaign and cited for award of the

* Presidential Unit Citation, for the period 7December 1941 to 10May 1942 by WDGO Number22, dated 1942
* Philippine Presidential Unit Citation, for the period 7December 1941 to 10May 1942 by DAGO Number47, dated 1950

11. Army Regulation 605-12 (Commissioned Officers), effective 23May 1945, in effect at the time, stated all commissioned officer personnel below the grade of colonel who are returned to the United States military control from a status of internee, MIA, evading capture in enemy held territory, or POWs and who presumably would have been promoted but for their internment, evasion or capture, will be considered for an immediate one grade promotion provided the circumstances surrounding the individual’s loss to the Army of the United States were honorable. Recommendations for promotion under the provisions of this paragraph may be submitted without regard to time in grade, time in position, or position vacancies. There was no provision to consider former POWs retroactively for the one grade promotion.

12. Title 10, U.S. Code, section 1130 provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion. It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation. Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

13. The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to the Secretary of the Army at the following agency: Commander, U.S. Army Human Resources Command, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122. The applicant’s unit must be clearly identified, along with the period of assignment and the award being recommended. A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638. Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates, and related documents. Corroborating evidence is best provided by commanders, leaders and fellow Soldiers who had personal knowledge of the circumstances and events relative to the request. The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

DISCUSSION AND CONCLUSIONS:

1. The conditions under which the Japanese treated prisoners of war have been well documented throughout history. Facing brutal conditions including disease, torture, and malnourishment, many prisoners died while in captivity. It is clear the intent of the change of PurpleHeart eligibility criteria policy was to recognize the sacrifice by these individuals.

2. The FSM died from colitis while a prisoner of the Japanese. It is reasonable to presume he contracted this condition due to the deplorable conditions under which he was forced to live by the Japanese. In addition, this disease is not considered fatal when proper treatment is received. Because the Japanese failed to provide any medical attention to the prisoners of war, the FSM died. This clearly shows the FSM died in captivity as a result of enemy action. Therefore, it would be appropriate to posthumously award the PurpleHeart to the FSM for his death on 7 June 1942 while a POW.

3. The available evidence confirms during World WarII the FSM served in the Philippine Department from on or about 1December 1941 until he was captured by enemy forces on 7May 1942. During this time, he participated in one campaign and served during a qualifying period for award of the:

* American Defense Service Medal
* Asiatic-Pacific Campaign Medal with one bronze service star
* WorldWarII Victory Medal
* Philippine Defense Ribbon

4. The available evidence shows he was a POW from 7May 1942 until his death in a Japanese camp on 1February 1945; therefore, he was entitled to award of the POW Medal.

5. The available evidence shows his unit was awarded the Presidential Unit Citation and the Philippine Presidential Unit Citation while he was assigned to the unit. Therefore, his records should be corrected to show these two unit awards.

6. The available evidence shows during his assignment to the Philippines he participated in the Philippine Islands Campaign and his unit was awarded the Presidential Unit Citation. Therefore, it would be appropriate to award him the Bronze Star Medal based on his participation in the Philippine Islands Campaign from 8December 1941 to 6May 1942 and correct his records to show this award.

7. With respect to the American Campaign Medal, the FSM served in the Asiatic-Pacific Theater of Operations and not the American Theater during his service in WWII. Therefore, he did not have qualifying service for award of this medal.

8. With respect to the SilverStar, although the applicant provided a letter wherein LTCJHT stated he heard unofficially the FSM was awarded the Silver Star, the available evidence does not show the FSM was ever awarded this medal. The governing Army regulation states that for personal decorations (which include the SilverStar) formal recommendations, approval through the chain of command, and announcement in orders are required. Regrettably, in the absence of conclusive evidence that shows the FSM was awarded the SilverStar, there is insufficient evidence to correct his record to show this award.

9. Nevertheless, while the available evidence is insufficient for awarding the FSM the SilverStar, this in no way affects the applicant’s right to pursue her claim for the SilverStar for the FSM by submitting a request through her Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

10. With respect to the FSM’s promotion to MAJ, at the time the FSM was a POW until his death on 1February 1945, there was no policy for promoting POWs by one grade. It wasn’t until 23 May1945 that the Army adopted the policy of considering the eligibility of POW’s for a one grade promotion upon their release; however, there was no provision to consider former POWs retroactively for the one grade promotion. Therefore, the applicant is not entitled to this portion of the requested relief.

BOARD VOTE:

________ ________ ________ GRANT FULL RELIEF

___X____ ____X___ ___X___ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that:

a. The FSM be posthumously awarded the Bronze Star Medal for participation in the Philippine Islands Campaign from 8December 1941 to 6May 1942 and the PurpleHeart based on his death on 1February 1945 while a prisoner of war;

b. An appropriate document should be produced to show the FSM:

* served on active duty from 13June 1933 until his death as a POW on 1February 1945
* he was a POW from 7May 1942 to 1February 1945
* his rank as CPT
* his last duty assignment as Headquarters, Philippine Detachment, Philippines
* he participated in the Philippine Islands Campaign
* he was awarded the:

* Bronze Star Medal
* Purple Heart
* Prisoner of War Medal
* American Defense Service Medal
* Asiatic-Pacific Campaign Medal with one bronze service star
* World War II Victory Medal
* Philippine Defense Ribbon
* Presidential Unit Citation
* Philippine Presidential Unit Citation

2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to the American Campaign Medal, Silver Star, and promotion to Major.

_______ _ 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.

ABCMR Record of Proceedings (cont) AR20140000093

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ABCMR Record of Proceedings (cont) AR20140000093

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