RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 18 December 2003
         DOCKET NUMBER: AR2003088318


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Richard P. Nelson		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. James E. Anderholm		Member
Ms. Yolanda Maldonado		Member

         The applicant and counsel if any, did not appear before the Board.

         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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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant, the Director of Veterans Affairs for the city of Danbury, Connecticut, requests on behalf of the brother (who is the legal next of kin) of a deceased former service member (FSM) who served in World War II (WWII), that the Distinguished Service Cross (DSC), posthumously awarded to the FSM, be upgraded to the Medal of Honor (MH).

2. The applicant states that the FSM should have been awarded the MH for his performance in action. The applicant further states that the FSM “should not have been eliminated from the list of people selected for their performance in action because of his race. Back then, discrimination was at an optimum level. He gave his life leading his men in battle. No one to date has given a reason why he was singled out.”

3. The applicant provides copies of several articles describing the action in which the FSM was mortally wounded and awarded the DSC. In addition, the applicant provides copies of articles describing racial issues at the time of the FSM’s death, as well as copies of several letters between members of various branches of government at the state and national levels.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of injustice that occurred on 19 October 1995. The application submitted in this case is dated 7 March 2003.

2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. General Headquarters, United States Armed Forces, Pacific, General Orders Number 401, dated 17 December 1945, announces award of the DSC for extraordinary heroism in action to the FSM. The citation indicates that the FSM was leading 3d Platoon, Battery B, 870th Antiaircraft Automatic Weapons Battalion in an attack against an enemy position on a high plateau on Ryukyu Islands (Okinawa) and that, during the assault, the FSM was mortally wounded by a sniper’s bullet.

4. U.S. Total Army Personnel Command (PERSCOM) letter, dated 1 July 1996, shows that in 1993, the Acting Secretary of the Army commissioned a study to review the MH processing procedures as applied to African-American soldiers during WWII. No African-American soldier had been awarded the MH during that war. The resulting report, conducted by a team of military historians, recommended that the Army evaluate the award recommendations of ten African-American soldiers during WWII for possible award of the MH for their actions. Nine of the soldiers had received the DSC for their actions and one had received no award. The FSM was one of the nine DSC recipients so recommended.

5. On 19 October 1995, the Senior Army Decorations Board (SADB) reviewed the award packets of all ten African-American soldiers recommended by the study described in paragraph 4, above. The FSM’s packet was one of the ten considered by the SADB. As a result of the review, the SADB recommended award of the MH to seven of the ten soldiers for their heroism. Six of the seven had been awarded the DSC and the one soldier, who had not received an award, was also recommended for the MH. The FSM was not among the seven recommended for award of, or upgrade to, the MH.

6. PERSCOM Military Awards Branch has advised that the Secretary of the Army approved the recommendation of the SADB and forwarded it, through the chain of command, to the President, who approved award of the seven MHs.

7. PERSCOM Memorandum TAPC-PDA, dated 10 October 1995, announced the composition of the SADB. The membership was comprised of a very select and experienced group of soldiers. Of the five members, three were lieutenant generals, one was a major general, and the fifth member was the Army’s senior enlisted soldier, the Sergeant Major of the Army. One of the members was a MH recipient.

8. PERSCOM Memorandum TAPC-PDA, dated 10 October 1995, also announced operational procedures of the SADB. The memorandum indicated that SADB members were provided, in addition to the award recommendations of the ten soldiers, copies of approved (emphasis added) WWII MH packets for reference and comparative purposes. Also provided to the SADB were extracts of past and then present criteria for the MH, the DSC and the Silver Star (SS).

9. TAPC-PDA Form 738-1, Senior Army Decorations Board Recommendation Medal of Honor Board, dated 19 October 1995, and signed by the Board President, indicates that the SADB unanimously recommended disapproval of award of the MH to the FSM. The reason for disapproval, cited in section 2 of the form, was that the degree of heroism or gallantry did not meet the criteria for award of the MH.

10. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the MH. The MH is awarded by the President, in the name of Congress, to a person who while a member of the Army distinguishes himself or herself conspicuously by gallantry and intrepidity at the risk of his or her life above and beyond the call of duty while engaged in an action against an enemy of the United States. The regulation provides that the deed performed must have been one of personal bravery or self sacrifice so conspicuous as to clearly distinguish the individual above his or her comrades and must have involved the risk of life. Further, the regulation requires that “incontestable proof” of the performance of the service will be exacted and each recommendation for this decoration will be considered on the standard of extraordinary merit.

11. Army Regulation 600-8-22 provides, in pertinent part, that the DSC is awarded to a person, who while serving in any capacity with the Army, distinguished himself or herself by extraordinary heroism while engaged in action against an enemy of the United States not justifying award of the MH. The act or acts of heroism must have been so notable and have involved risk of life so extraordinary as to set the individual apart from his or her comrades.

DISCUSSION AND CONCLUSIONS:

1. Evidence of record shows that the FSM was recognized by the Army for his extraordinary heroism by award of the DSC.

2. The SADB determined that the degree of the FSM’s heroism or gallantry did not meet the level necessary for award of the MH. The fact that a member of the SADB was a MH recipient, in his own right, lends tremendous credence to the decision made by the SADB and its final recommendation.

3. The FSM was not the only soldier not recommended for award of the MH. The board determined that two others, both of who performed magnificently under fire, were also recognized for their heroism by award of the DSC.

4. The decision of the board was a unanimous one, indicating that the members all agreed on the level of award and concurred in the final recommendation.

5. In order to justify correction of a military record the applicant must show, 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.


BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

____jea__ ____ym__ ___rvo__ DENY APPLICATION

1. The Board concluded the applicant presented no evidence that the deliberations of the SADB, or the decision of the Secretary of the Army, were flawed, inequitable, unjust or in contravention of Army regulations or policy.

2. The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

3. In view of the foregoing, there is no basis for granting the applicant's request.






                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003088318
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031218
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.
2.
3.
4.
5.
6.