MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 September 2001
         DOCKET NUMBER: AR2001057255

         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
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Curtis L. Greenway		Member
Mr. Donald P. Hupman		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)

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APPLICANT REQUESTS: That the two narrative citations contained in General Orders Number 3, dated 18 January 1945, for award of the Soldier’s Medal, be amended.

APPLICANT STATES: In effect, that these narrative citations do not accurately state what happened. The applicant contends that both citations should have included that it was dark outside, the time lapse and that the soldier most likely would have drowned if he had not gone to him when he did. The applicant also contends that the other soldier’s narrative citation should be amended to show that the soldier did not save the applicant’s life and that the applicant came ashore by himself. In support of his application, he submits a copy of a retirement letter, dated 10 November 1964; a copy of General Orders Number
3, dated 18 January 1945, for award of the Soldier’s Medal; a letter, dated 1 May 2001, wherein the applicant requests that the American Legion act as his counsel; a letter, dated 25 April 2001, from the American Legion to the applicant; and two letters, dated 1 May 2001 and 10 April 2001, from the applicant to the American Legion.

COUNSEL CONTENDS: The American Legion, as counsel for the applicant, reiterates the applicant’s request that the order awarding him the Soldier’s Medal be corrected to show that he was responsible for this heroic action and was unassisted until he reached the safety of shallow waters. Counsel also points out the injustice raised by the applicant on his application. Counsel opines that this submission, in conjunction with the official Army records, amply advance the applicant’s contentions and substantially reflect the probative facts needed for equitable review.

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

The applicant enlisted on 22 January 1941. He served as a chief clerk in the Asiatic-Pacific Theater from 24 March 1941 through 27 February 1945 and was honorably discharged on 4 June 1945. He subsequently served in the Enlisted Reserve Corps, Regular Army and retired in the rank of master sergeant on
30 November 1964.

The applicant’s military records contain Eighth Army Area Command General Orders Number 3, dated 18 January 1945, which show the applicant was awarded the Soldier’s Medal for heroism on 28 December 1944. The citation states “Technical Sergeant [applicant], [service number], Transportation Corps, United States Army. For heroism at Telegrafo, Island of Leyte, Philippine Islands, on 28 December 1944. The turbulence created by an LSM, backing from the beach, tended to carry offshore a group of soldiers who were swimming in the vicinity of the ship. All save one of the group succeeded in returning to the beach. Attracted by the cries of the struggling soldier, [the applicant], despite his semi-exhausted condition, reentered the water and kept the drowning soldier afloat until another soldier was able to relieve him and effect the rescue”.

These orders also contain another soldier’s citation for award of the Soldier’s Medal for the same incident. It states “Private _____, [service number], Infantry, United States Army. For heroism at Telegrafo, Island of Leyte, Philippine Islands, on 28 December 1944. While swimming in Leyte Gulf a soldier was carried offshore by the turbulence created by an LSM backing from the beach. Another soldier swam to his assistance and was, with difficulty, keeping him afloat. Private ______, realizing the predicament of the two soldiers in the water, went to their assistance and was instrumental in saving both their lives”.

There is no evidence in the available records which shows the narrative citations for award of the Soldier’s Medal contained in Eighth Army Area Command General Orders Number 3, dated 18 January 1945, were inaccurate.

Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Soldier's Medal is awarded for distinguished heroism not involving actual conflict with the enemy. The same degree of heroism is required as for award of the Distinguished Flying Cross. The performance must have involved personal hazard or danger and the voluntary risk of life under conditions not involving conflict with an armed enemy. Awards of the Soldier’s Medal will not be made solely on the basis of having saved a life. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. Recommendations must be made within
2 years of the event or period of service and the award must be made within
3 years. There are regulatory provisions for lost recommendations but not for late recommendations or reconsideration.

Army Regulation 600-8-22 provides in paragraph 3-1c that the decision to award an individual a decoration and the decision as to which award is appropriate are both subjective decisions made by the commander having award approval authority.

Army Regulation 15-185 (Army Board for Correction of Military Records) provides Department of the Army policy, criteria and administrative instructions regarding an applicant’s request for the correction of a military record. Chapter 2, Section
II (Application Procedures), paragraph 2-3c, provides in pertinent part, that an applicant with a proper interest may request correction of another person’s military records when that person is incapable of acting on his or her own behalf, missing, or deceased.

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. Records show the applicant received the Soldier’s Medal for heroism on
28 December 1944.

2. The applicant has not presented any evidence that the award process or the decision by the appropriate award approval authority for the Soldier’s Medal was flawed or otherwise unjust, improper or inequitable.

3. This Board considered all information submitted and all available evidence of record in this case and found no compelling evidence which warranted amending the applicant’s narrative citation for award of the Soldier’s Medal.

4. The Board considered the applicant’s request to amend another person’s military record. However, in accordance with Army Regulation 15-185, an applicant with a proper interest may request correction of another person’s military records when that person is incapable of acting on his or her own behalf, missing, or deceased. There is no evidence available to the Board, and the applicant has provided no evidence, which shows that he has “proper interest” in this individual’s case.

5. 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 the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

6. 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

CLA____ CLG____ DPH_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001057255
SUFFIX
RECON
DATE BOARDED	20010911
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	133.0400
2.
3.
4.
5.
6.