RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 February 2004
      DOCKET NUMBER:   AR2003091378


      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             |
|     |Mrs. Victoria A. Donaldson        |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Melvin H. Meyer               |     |Member               |
|     |Mr. Robert L. Duecaster           |     |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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his award of the Silver Star be
upgraded to award of the Distinguished Service Cross.

2.  The applicant states, in effect, that he was unjustly denied award of
the Distinguished Service Cross.

3.  The applicant contends that the major general in command of the 87th
Infantry Division would not grant battlefield promotions or authorize
awards for personnel of Polish descent.

4.  The applicant provides a copy of the citation for award of the Silver
Star; a 24 June 1993 letter from the Chief, Special Actions Division,
Veterans Services Directorate, U.S. Army Reserve Personnel Center, St.
Louis, Missouri; a DA Form 1577 (Authorization for Issuance of Awards),
dated 25 June 1993; a copy of the authorization for the Presidential Unit
Citation; a 14 September 1945, character reference letter; a 21 April 1943,
letter of recommendation; a 15 November 1945, letter of appreciation; six
pages of self-authored historical notes; and a copy of the second page of
an unidentified personnel record which lists the applicant's major
assignments from 26 November 1940 through 6 June 1949.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice which occurred
on 31 March 1964, the date that the applicant's records were considered by
the Senior Army Decorations Board.  The application submitted in this case
is dated 18 May 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.  The applicant enlisted on 26 November 1940 and served until he was
commissioned as a second lieutenant on 19 September 1942.  The applicant
served on active duty as a commissioned officer with the 87th
Reconnaissance Troop until he separated on 22 September 1945.  The
applicant subsequently served as member of the Army National Guard and the
United States Army Reserve until he was placed on the Reserve retired list
on 9 March 1978.
4.  Records show that on 28 April 1945, the Awards and Decoration Board of
the 87th Infantry Division considered the recommendation for award of the
Silver Star to the applicant for actions that occurred on 15 April 1945.

5.  The narrative citation for the Silver Star stated the following:
"[Applicant's name omitted], First Lieutenant, 87th Calvary Reconnaissance
Troop, for gallantry in action against an armed enemy of the United States
near Possneh, Germany, on 15 April 1945.  [Applicant's Name Omitted] was in
command of the leading vehicle in the Task Force Sundt.  While well in
advance of the main body of troops, he encountered direct fire from a
camouflaged panzerfaust position, injuring him and setting his vehicle
ablaze.  Although suffering from fragment wounds, flash burns, and shock,
he stood up and fired his machine gun at the hostile position, until forced
from his vehicle by leaping flames.  Armed only with a carbine,
[applicant's name omitted] fearlessly charged the enemy placement.  As a
result of his gallantry the panzerfaust position was destroyed, enabling
the Task Force to proceed on its mission.  His courage and devotion to duty
exemplify the highest traditions of the United States Army.  Entered
military service from Michigan."

6.  On 30 May 1945, the major general in command of the 87th Infantry
Division returned the recommendation for award of the Silver Star to the
Awards and Decoration Board and recommended that the applicant be awarded
the Distinguished Service Cross instead.

7.  Records show that a recommendation for award of the Distinguished
Service Cross for the applicant was prepared on 11 June 1945.

8.  On 14 June 1945, the Awards and Decorations Board of the 87th Infantry
Division considered a recommendation for award of the Distinguished Service
Cross to the applicant.

9.  The applicant's records contain a copy of the proposed narrative
citation for the Distinguished Service Cross which stated the following:
"[Applicant's name omitted], First Lieutenant, 87th Cavalry Reconnaissance
Troop, for extraordinary heroism in action against an armed enemy of the
United States on 15 April 1945. As Task Force Sundt approached Schmorda,
Germany, the lead vehicle, commanded by [the Applicant's name omitted],
suddenly came under panzerfaust, machine gun, and rifle fire from a well
camouflaged position.  A panzerfaust round pierced the side of the armored
car, set it ablaze and threw [the applicant's name omitted] to the ground.
Despite painful fragment wounds, burns and shock, and the danger of
ammunition exploding, this intrepid officer climbed to the turret of his
flaming vehicle and began to fire the 50 caliber machine gun at the enemy.
With utter disregard for personal safety, while thus exposed to continuing
enemy machine gun and rifle fire, [the applicant's name omitted] exhausted
his 50 caliber ammunition and then emptied the 30 caliber machine gun at
the enemy.  Dismounting, he emptied his carbine at close range, borrowed a
BAR [Browning Automatic Rifle], and charged the enemy position.
Singlehandedly, he destroyed the panzerfaust position and killed
approximately eight of the enemy.  [Applicant's name omitted] example of
extraordinary heroism and leadership serves as an inspiration to the men of
his troop and exemplifies the finest traditions of the military services.
Entered military service from Michigan."

10.  On 15 June 1945, the major general in command of the 87th Infantry
Division recommended approval of the Distinguished Service Cross for the
applicant and forwarded the award recommendation to the Commanding General
of the Ninth U.S. Army.  Attached to this recommendation were two
affidavits from eyewitnesses attesting to the actions of the applicant; a
copy of the "Report of Proceedings"; and the proposed citation for award of
the Distinguished Service Cross to the applicant.  The recommendation was
subsequently forwarded to the Commanding General of the Seventh US Army
with a recommendation for approval.

11.  On 16 August 1945, the Commanding General of the Seventh U.S. Army
notified the Commanding General of the 87th Infantry Division that the
recommendation for award of the Distinguished Service Cross for the
applicant was reviewed by a board of officers.  That board determined that
the action cited, while heroic, was not sufficient to warrant award of the
Distinguished Service Cross.

12.  The Commanding General of the Seventh U.S. Army determined that the
Silver Star was considered more appropriate in this case.

13.  In a 12 August 1947 letter, the applicant requested information on the
disposition of his recommendation for award of the Distinguished Service
Cross. The applicant states "that the Commanding General of the 87th
Infantry Division personally made it known to me that he had approved the
recommendation.  This conversation took place in the presence of the Chief
of Staff and the General's Aide in Rheim, France prior to our departure for
the US."

14.  The applicant's records contain a 1st endorsement to his letter,
prepared by the Department of the Army Adjutant General's Office, dated 14
November 1947. This endorsement states that the records did not show which
headquarters took final action on the original recommendation, that the
recommendation was not received in this office and there was no general
order received announcing the award recommended.

15.  The Adjutant General concluded that copies of general orders
announcing awards are received in this office from all commanders
authorized to take final action on recommendations for awards and that in
the absence of general orders announcing the award it can be concluded that
the recommendation did not receive favorable consideration at an
intermediate headquarters in the chain of military command.

16.  Review of the applicant's records indicate that no further action
occurred with regard to award of the Distinguished Service Cross to the
applicant for his actions on 15 April 1945.

17.  A 9 March 1964 memorandum addressed to the members of the Senior Army
Decorations Board stated that a recommendation for award of the Silver Star
was forwarded through appropriate channels.  This memorandum further
indicated that the recommendation for award of the Silver Star would be
considered with the recommendation for award of the Distinguished Service
Cross for the applicant.

18.  Based on Public Law 86-582, which was enacted by Congress on 5 July
1960, a copy of the original recommendation for award of the Distinguished
Service Cross was considered by the Senior Army Decorations Board.  That
Board determined that the request for award of the Distinguished Service
Cross was submitted through channels within the prescribed time limitations
and received initial processing.

19.  On 16 March 1964, the Senior Army Decorations Board considered the
recommendation for award of the Distinguished Service Cross and disapproved
the recommendation.  The reason for disapproval was that the degree of
heroism indicated did not meet the criteria for the recommended award and
that gallantry in action was not displayed sufficiently to warrant award of
the Distinguished Service Cross.

20.  Although, the Senior Army Decorations Board disapproved of the
recommendation for award of the Distinguished Service Cross to the
applicant, it determined that the applicant should be awarded Silver Star
based on his actions on 15 April 1945.

21.  The President of the Senior Army Decorations Board recommended
approval of the Board's results.

22.  On 31 March 1964, the Deputy Chief of Staff for Personnel recommended
approval of the Senior Army Decorations Board results which unanimously
recommended disapproval of award of the Distinguished Service Cross and
approval of award of the Silver Star to the applicant.

23.  On 2 April 1964, the acting Vice Chief of Staff of the Army approved
the results of the Senior Army Decorations Board which recommended that the
applicant be awarded the Silver Star.
24.  On 9 April 1964, the Commanding General of the Fifth United States
Army was notified that the applicant had been awarded the Silver Star and
was provided an engraved Silver Star, official citation and the certificate
pertaining to the award for presentation.

25.  Department of the Army, General Orders Number 18, dated 29 May 1964,
awarded the Silver Star to the applicant.

26.  The applicant provided a letter from a fellow officer who served with
the applicant in World War II.  This former officer indicated in a 26
December 1992 letter that the commanding general of the 87th Infantry
Division blocked the recommendation for the Distinguished Service Cross
submitted by the task force commander for the applicant's actions on 15
April 1945.

27.  Army Regulation 600-45 (Personnel) was the military awards regulation
in effect at the time of the applicant’s service.  Section II of this
regulation required that awards of the Bronze Star Medal and the Silver
Star were to be approved, during periods of war, by “the commander of any
separate force outside of the limits of the continental United States when
the commander is a major general or officer of a higher grade; and this
authority may be delegated to subordinate commanders not below the grade of
major general.”

28.  Paragraph 12 of Army Regulation 600-45 governed award of the
Distinguished Service Cross at the time in question.  The regulation states
that the Distinguished Service Cross is awarded to any person who, while
serving in any capacity with the Army of the United States, shall have
distinguished himself or herself by extraordinary heroism in connection
with military operations against an armed enemy.  Paragraph 12b states the
standards for this award as “The act or acts of heroism performed must have
been so notable and have involved the risk of life so extraordinary as to
set the individual apart from his or her comrades."

29.  Public Law 86-582, which was enacted on 5 July 1960, authorized the
consideration of award recommendations which were submitted into military
channels and through inadvertence were not acted upon within the prescribed
time limitations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the Army major general in command of the
87th Infantry Division withheld battlefield promotions and "blocked" the
applicant's award of the Distinguished Service Cross because he was of
Polish descent.

2.  Contrary to the applicant's contention, military records in this case
show that the major general in command of the 87th Infantry Division
recommended that the applicant be awarded the Distinguished Service Cross
for his actions on 15 April 1945 and forwarded that recommendation for
further processing.

3.  Records show that the Commanding General of Seventh Army determined
that award of the Silver Star was appropriate for the applicant's actions
and approved the Silver Star instead of award of the Distinguished Service
Cross.

4.  However, the orders for award of the Silver Star to the applicant were
never found and, in March 1964, the Senior Army Decorations Board
determined that the award processing was incomplete.  As a result the
Senior Army Decorations Board considered both original recommendations for
award of the Silver Star and the Distinguished Service Cross.

5.  Evidence of record further shows that the Senior Army Decorations Board
recommended disapproval of award of the Distinguished Service Cross, but
approval of award of the Silver Star.  Military records further show that
the Acting Vice Chief of Staff of the Army approved the recommendation of
the Senior Army Decorations Board denying award of the Distinguished
Service Cross and approving award of the Silver Star instead.

6.  There is no evidence that the processing of the recommendation for
award of the Distinguished Service Cross, its consideration by the Senior
Army Decorations Board or its disapproval by the Acting Vice Chief of Staff
of the Army was contrary to regulation, flawed or unjust.  In the absence
of such evidence, there is insufficient evidence to warrant upgrade of the
applicant's award of the Silver Star to the Distinguished Service Cross.

7.  There is no evidence and the applicant has not provided evidence that
supports his contention that the commanding general of the 87th Infantry
Division did not allow battlefield promotions based on ethnic descent.

8.  Records show the applicant should have discovered the alleged injustice
now under consideration on 16 March 1964; therefore, the time for the
applicant to file a request for correction of any error or injustice
expired on 15 March 1967.  However, the applicant did not file within the 3-
year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

_RJW____  _MMH__  _RLD___   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.

3.  While the decision of the ABCMR in this case is not favorable, the
Board wants the applicant, his fellow veterans and all others concerned to
know that this action in no way diminishes the heroism and sacrifice by the
applicant in his service to the United States of America.  The applicant
distinguished himself by gallantry in action on 15 April 1945 in Schmorda,
Germany, and was awarded the Silver Star, this Nation's third highest award
for heroism.  Unquestionably, the applicant is a brave and highly decorated
soldier and he and all Americans should be very proud of his service in
arms and the recognition accorded him for his heroism.



              _Raymond J. Wagner____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003091378                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040219                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES        1.        |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |