RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 July 2006
      DOCKET NUMBER:  AR20050014263


      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             |
|     |Ms. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Donald L. Lewy                |     |Member               |

      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 her late brother's, a former
service member (FSM), award of the Distinguished Service Cross be upgraded
to a Medal of Honor.

2.  The applicant states that she believes the FSM was not considered for
award of the Medal of Honor because he was Hispanic.

3.  The applicant provides a DA AGO Form 639 (Recommendation for Award –
Heroism), dated 27 September 1952; a Headquarters, Eighth United States
Army Korea (EUSAK) Decorations and Awards Action Sheet, dated 2 November
1952; a copy of Headquarters, EUSAK General Orders Number 687, dated
10 November 1952; a copy of the Proposed Citation for award of the
Distinguished Service Cross; a copy of two Sworn Statements, both dated
27 September 1952; a hand-drawn map; a Headquarters, EUSAK memorandum,
dated 14 November 1952; and a U.S. Army Human Resources Command (HRC)
Military Awards Branch letter, dated 5 August 2005, in support of her
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 10 November 1952, the date Department of the Army General
Orders Number 687 were published awarding the FSM the Distinguished Service
Cross.  The application submitted in this case is dated 7 September 2005.

2.  The FSM’s military records are not available to the Army Board for
Correction of Military Records (ABCMR) for review.  A fire destroyed
approximately 18 million 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, the applicant submitted sufficient
documents for which the ABCMR may conduct a fair and impartial review of
this case.

3.  The FSM served in an Armor position while assigned to Company C, 245th
Tank Battalion of the 45th Infantry Division, in Korea.  On 22 September
1952, the FSM and his tank crew were defending Hill 854 when they were
overrun by enemy elements.  The FSM was killed by hostile fire.

4.  The applicant submitted a copy of the DA AGO Form 639 (Recommendation
for Award - Heroism), dated 27 September 1952, which recommended the FSM
for award of the Distinguished Service Cross for his actions on 22
September 1952.

      a.  Item 23 (LIST PERSONS WHO WERE IN IMMEDIATE PROXIMITY AT TIME OF
ACT INCLUDING THOSE WHO ASSISTED IN THE ACT OR SHARED IN THE SAME HAZARDS
AS THE PERSON RECOMMENDED) lists two Soldiers in the pay grade private/E-2.

      b.  Item 28 (DESCRIBE ENEMY CONDITIONS, WHAT THWE ENEMY WAS DOING AND
WHAT THEY DID AS A RESULT OF ACT) states the following:  "Morale good,
proximity 200 yrds., intense enemy small arms, artillery, and mortar fire.
Enemy was attacking Hill 854 while friendly elements were defending it."

      c.  Item 29 (MORALE, CASUALTIES AND MISSION OF OWN UNIT, AND WHAT THE
UNIT WAS DOING AT TIME OF ACT) states the following:  "Morale excellent,
casualties light.  Mission was to defend Hill 854 and tank positions."

      d.  Item 30 (WHAT WERE COMRADES OF THE INDIVIDUAL WHO WERE IN
IMMEDIATE PROXIMITY DOING?  HOW DID THEY PARTICIPATE IN THE ACT?) states
the following:  "Sergeant [FSM's name omitted] and the members of his tank
crew were defending Hill 854 when they were overrun by enemy elements."

      e.  Item 31 (DESCRIBE WHAT THE PERSON RECOMMENDED DID)  states the
following:  "Sergeant [FSM's name omitted] and the members of his tank crew
were defending tank positions and giving support to friendly elements when
they were attacked by enemy elements.  Sergeant [FSM's name omitted] manned
the 130 machine gun.  At this time a bazooka penetrated the tank turret,
mortally wounding Sergeant [FSM's name omitted].  In spite of his severe
wounds, Sergeant [FSM's name omitted] continued to lead and inspire his
tank crew.  As the enemy attacked, Sergeant [FSM's name omitted], not
mindful of his wounds, continued to fire upon them.  He continued in his
brave and courageous efforts until he died of wounds received."

      f.  Item 32 (WAS ACT VOLUNTARY?) contains an "X" in the box labeled
"YES".  (DESCRIBE WHY ACT WAS OUTSTANDING  IF IT WAS MORE THAN NORMALLY
EXPECTED, EXPLAIN HOW.) states the following:  "Although seriously wounded
and loosing blood rapidly, Sergeant [FSM's name omitted] continued to
defend his position until he could no longer perform his duties.  Through
his quick thinking and alertness, he inflicted heavy casualties upon the
enemy and further inspired the members of his tank crew."



      g.  Item 33 (DESCRIBE THE EFFECT OR RESULT OF ACT) states the
following:  "Sergeant [FSM's name omitted], through his unselfish devotion
to duty, caused the enemy to have many casualties, and inspired the members
of his tank crew to their duty."

      h.  Item 34 (RELATED POSITION OF INDIVIDUAL INITIATING RECOMMENDATION
TO PERSON BEING RECOMMENDED) contains the entry:  "Commanding Officer"

      i.  Item 36 (LIST INCLOSURES) contains the following entries:

            1.  Proposed Citation
            2.  Statements of two eyewitnesses
            3.  Sketch of area

      j.  The last block of the form (TYPED NAME, GRADE, TITLE AND ARM OR
SVC OF INDIVIDUAL INITIATING RECOMMENDATION] contains the name of the U.S.
Army Armor Captain serving as the Commanding Officer.

6.  Attached as Incl #1 to the Recommendation for Award is the "PROPOSED
CITATION FOR AWARD OF THE DISTINGUISHED SERVICE CROSS" which is quoted in
full as follows:

      "Sergeant [FSM's name omitted], US 5XXXXXXX, Armor, United States
Army, while a member of Company C, 245th Tank Battalion, 45th Infantry
Division, distinguished himself by extraordinary heroism in action against
an armed enemy near Songowol, Korea, on 22 September 1952.  On the night of
21 September 1952 a probe by enemy units threatened the security of
supporting tank positions on the left flank of Hill 854.  Sergeant [FSM's
name omitted] serving as tank commander, immediately maneuvered his vehicle
into position and layed accurate machine gun fire on the attacking hordes.
Firing was sustained until Sergeant [FSM's name omitted] and the loader
were both wounded and the severity of the hostile fire forced them to
secure the hatch.  The enemy swarmed toward their position and surrounded
the tank.  The foe peppered the vehicle with grenades, set demolitions
under the track, and fired down the gun tubes in an attempt to destroy the
tank.  Suddenly the fire subsided, but with the arrival of dawn the enemy
again converged on the vehicle. Again the crew directed accurate fire on
the enemy before moving toward the base of the hill to rejoin the friendly
infantry units who had been driven off the hill. While proceeding down the
hazardous slope, the tank was hit by rocket fire which disabled the vehicle
and seriously wounded Sergeant [FSM's name omitted].  When one of the crew
opened the hatch, the enemy hurled grenades through the opening.  Although
his arm and shoulder had been shattered and he had received severe chest
wounds, Sergeant [FSM's name omitted] picked up the missles as they fell in
the tank and threw them out of the vehicle.  With rare courage, he
continued to stave off the attackers until finally succumbing to his
wounds.  The extraordinary heroism displayed by Sergeant [FSM's name
omitted] on this occasion reflects the highest credit on himself and the
United States Army.  Entered the Federal service from New Mexico."

7.  Statement #1 of Inclosure #2 to the Recommendation for Award is the
"SWORN STATEMENT" by Private (PVT-2) Mxxxxx which is quoted in full as
follows:

      "I was a driver on Sgt [FSM's name omitted]'s tank on the 21
September 1952, when at approximately 2030 hours a light probe got
underway.  The proximity was limited due to darkness.  Sgt [FSM's name
omitted] moved into firing position at Lieutenant Kxxx's command and fired
.30 and .50 caliber.  This lasted about one hour and fifteen minutes,
during which time Sergeant [FSM's name omitted] was ordered to return to a
position near a bunker and set up.  Fifteen minutes later, Corporal Sxxx
who was on guard heard firing and alerted the crew members of two tanks. At
this time, all crew members, excepting Corporal Bxxxx, were in the tank and
Sergeant [FSM's name omitted] ordered his tank into firing position and
fired into the oncoming enemy.  At this time Sergeant [FSM's name omitted]
was wounded behind the ear and ordered us to button up.  He remained in
firing position and the enemy began swarming over the tank.  Realizing he
was surrounded, he backed off firing position in order to traverse his
turret to fire on the enemy.  The enemy continued to throw grenades, shoot
out periscopes and place TNT charges on the tank, fired down the tube until
0500 hours the next morning, at which time all firing ceased.  It was still
dark and we waited until dawn, when it became possible to determine who
occupied the hill.  His first indication that enemy were in control of
positions was when the enemy ran into a bunker and Sergeant [FSM's name
omitted] ordered the gunner to fire.  Shortly after, a tank moved past our
position and out of sight.  Lieutenant Kxxx's tank moved down the road
following this tank.  Approximately five minutes later, Sergeant [FSM's
name omitted] ordered his tank to move down the road and they had gone
about 100 yards when he received a direct hit on his tank, which is thought
to have been a bazooka.  Sergeant [FSM's name omitted] was mortally wounded
at this time.  The tank continued to move about 50 yards and was stopped
completely by continued hits.  At this time the medic on the tank became
panicky because all crew members thought the tank was on fire.  The medic
opened the loader's hatch and attempted to leave the tank and was
immediately killed by a burst from an enemy burp gun.  Shortly after this,
the North Koreans began throwing grenades into the open hatch.  At this
time Corporal Lxxx then threw one grenade out before it exploded and
Sergeant [FSM's name omitted], in
spite of his severe wounds, threw out grenades.  Pfc Mxxxxx closed the
loaders hatch and the men fought all day until finally relieved by a
counterattacking force. Sergeant [FSM's name omitted] died shortly after
relief arrived."

8.  Statement #1 of Inclosure #2 was authenticated by Private (PVT-2)
Mxxxxx and sworn to and subscribed before Captain Sxxxx, the commanding
officer.

9.  Statement #2 of Inclosure #2 to the Recommendation for Award is the
"SWORN STATEMENT" by Private (PVT2) Hxxxxx which is quoted in full as
follows:

      "I was a loader on Sgt [FSM's name omitted]'s tank on the night of
21 September 1952, our position, the left flank of Hill 854, was attacked
by a small probe of enemy elements at approximately 2030 hours.  The
proximity was limited due to darkness.  Lieutenant Kxxx ordered his tank
and Sergeant [FSM's name omitted]'s tank into firing positions.  We were
firing .30 and .50 caliber in the direction of the probe.  This lasted for
nearly an hour at which time Lieutenant Kxxx ordered Sergeant [FSM's name
omitted] to withdraw his tank and take a new position near a bunker.
Fifteen minutes later the firing in front of our position resumed and
Lieutenant Kxxx ordered Sergeant [FSM's name omitted]'s tank back into
firing position.  It was at this time that the main attack began and
Sergeant [FSM's name omitted] fired .30 and .50 caliber at the oncoming
enemy until he and the loader were wounded and forced to button up.  He
continued to fire until surrounded and was forced back out of firing
position in order to traverse the turret to fire on the North Koreans
surrounding our tank.  All night the North Koreans threw grenades and set
charges of TNT on or about the tank, fired down the tubes and attempted
every known way to destroy the tank.  The firing ceased at 0500 hours the
next morning and it was not until dawn that we could distinguish who was in
control of this hill.  North Koreans were finally observed entering a
bunker and running across the roads into trucks.  Sergeant [FSM's name
omitted] ordered us to fire at them and shortly after noted a tank moving
past us from his right flank position.  Lieutenant Kxxx backed around us to
get out attention and moved down the road where we later heard he was hit
and his tank caught fire.  Sergeant [FSM's name omitted] waited about five
minutes and ordered his tank to follow.  We had not gone over 100 yards
when we were hit with bazooka fire which mortally wounded Sergeant [FSM's
name omitted].  The tank continued to move, but cut out suddenly and
completely.  The medic in our tank became panicky and opened the loader's
hatch and was killed instantly by a North Korean burp gun.  With the hatch
still open, the North Koreans began throwing in grenades which were grabbed
and thrown out by Sergeant [FSM's name omitted] and Corporal Lxxx.
Sergeant [FSM's name omitted] was in pain,
with his shattered arm, shoulder and chest.  We continued to fight the
remainder of the day until relieved by counterattacking forces.  Sergeant
[FSM's name omitted] died within a very short time after receiving aid."

10.  Statement # 2 of Inclosure #2 was authenticated by Private (PV2)
Hxxxxx and sworn to and subscribed before Captain Sxxxx, the commanding
officer.

11.  Attached as Inclosure #3 to the Recommendation for Award is a hand-
sketched map of the area in which the actions occurred during the period 21-
23 September 1952.

12.  Headquarters, EUSAK Decorations and Awards Action Sheet, dated
2 November 1952, shows that the Decorations and Awards Board recommended
that the applicant be awarded the Distinguished Service Cross.  The
Commanding General approved the recommendation on 5 November 1952.

13.  Headquarters, EUSAK General Order Number 687, dated 10 November 1952,
announced award of the Distinguished Service Cross (Posthumous) to the FSM.
 These orders state:

      "By direction of the President under the provisions of the Act of
Congress approved 9 July 1918 (WD Bul 43, 1918), and pursuant to authority
in AR 600-45, the Distinguished-Service Cross for extraordinary heroism in
action is awarded posthumously in the name of the Commander-in-Chief, Far
East, to:

      Sergeant [FSM's name omitted], US5XXXXXXX, United States Army.
Sergeant [FSM's name omitted], while a member of a tank company,
distinguished himself by extraordinary heroism in action against the enemy
in the vicinity of Songowol, Korea.  On the night of 21 September 1952, a
probe by enemy units threatened the security of supporting tank positions
on the left flank of a tactically important hill.  Sergeant [FSM's name
omitted], a tank commander, immediately maneuvered his vehicle into
position and directed accurate machine-gun fire on the attacking foe.  In
the battle which followed, Sergeant [FSM's name omitted] was painfully
wounded, but nevertheless continued to fire his weapon with deadly
effectiveness.  Swarming forward and surrounding the friendly position, the
enemy peppered the tank with grenades, set demolition charges under the
tracks, and fired down the gun tubes in an attempt to destroy the vehicle.
As dawn approached the following morning the fire subsided, but a short
time later the enemy once more converged on the tank.  Again the crew
directed accurate fire on the enemy before moving toward the base of the
hill to rejoin friendly infantry units.  While proceeding down the
hazardous slope, the tank was hit by rocket fire which disabled the vehicle
and seriously wounded Sergeant [FSM's name omitted].  When one of the crew
opened the hatch, the enemy hurled grenades through the opening.  Although
his arm and shoulder had been shattered and he had received severe chest
wounds, Sergeant [FSM's name omitted] picked up the missiles as they fell
in the tank and threw them out of the vehicle.  With rare courage, he
continued to stave off the attackers until he finally succumbed to his
wounds.  The extraordinary heroism and self-sacrifice displayed by Sergeant
[FSM's name omitted] throughout this action reflect great credit on himself
and are in keeping with the finest traditions of the military service.
Entered the Federal service from New Mexico."

14.  By a letter, dated 5 August 2005, the Chief of the Military Awards
Branch notified a Member of Congress and the applicant that a review of the
recommendation for upgrading the FSM's award of the Distinguished Service
Cross had been considered by the Army Decorations Board under the
provisions of Section 552(b)(1) of the Fiscal Year 2002 National Defense
Authorization Act. The letter stated that the Army Decorations Board
"determined the degree of action and service rendered did not meet the
strict criteria for the proposed award."  The letter further stated that,
based on the recommendation of the Army Decorations Board, "the Commanding
General, United States Army Human Resources Command, on behalf of the
Secretary of the Army, disapproved award of the Medal of Honor; affirming
that the previously approved award of the Distinguished Service Cross was
the appropriate recognition for Sergeant [FSM's name omitted] actions."

15.  Army Regulation 600-45 (Personnel – Decorations), dated 22 September
1943 with changes, governed award of the Medal of Honor.  Paragraph 9 of
this regulation states:

      "The Medal of Honor is awarded in the name of Congress to each person
who, while an officer, noncommissioned officer, or private of the Army, in
action involving actual conflict with an enemy, distinguishes himself
conspicuously by gallantry and intrepidity at the risk of his life above
and beyond the call of duty."

      "In order to justify an award of the Medal of Honor, the individual
must perform in action a deed of personal bravery or self-sacrifice above
and beyond the call of duty, so conspicuous as clearly to distinguish him
for gallantry and intrepidity above his comrades, involving risk of life or
the performance of more than ordinarily hazardous service, the omission of
which would not justly subject him to censure as for shortcoming or failure
in the performance of his duty.  The recommendations for the decoration
will be judged by this standard of extraordinary merit and incontestable
proof of the performance of the service will be exacted."

16.  Section 552 of Fiscal Year 2002 National Defense Authorization Act
provides the policy and procedures regarding award of the Medal of Honor to
Jewish American and Hispanic American war veterans.  Section 552 states in
part, that any Jewish American war veteran or Hispanic American war veteran
who was awarded the Distinguished Service Cross before the date of the
enactment of this Act will have their service records reviewed to determine
whether the veteran should be awarded the Medal of Honor.  If the Secretary
concerned determines, based upon the review of the service records of any
Jewish American war veteran or Hispanic American war veteran, that the
award of the Medal of Honor to that veteran is warranted, the Secretary
shall submit to the President a recommendation that the President award the
Medal of Honor to that veteran.

DISCUSSION AND CONCLUSIONS:

1.  Records show the applicant exhausted her administrative remedies in
this case when her case was reviewed by the Army Decorations Board at the
HRC on 6 May 2005.  As a result, the applicant is within the 3-year statute
of limitations.

2.  The applicant contends that her late brother, the FSM, was not awarded
the Medal of Honor because he was Hispanic.

3.  It should be noted that the current criteria for award of the Medal of
Honor and the Distinguished Service Cross are stated in distinctly
different terms.

      a.  The current standards for award of the Medal of Honor are
fourfold:

            (1)  actions distinguished conspicuously by gallantry and
intrepidity at the risk of life above and beyond the call of duty;

            (2)  personal bravery or self-sacrifice so conspicuous as to
clearly distinguish the individual above his comrades involving risk of
life;

            (3)  incontestable proof of the performance of the service; and


            (4)  consideration on the standard of extraordinary merit.

      b.  The standards for award of the Distinguished Service Cross are
twofold:

            (1)  actions distinguished by "extraordinary heroism" not
justifying the award of a Medal of Honor;

            (2)  heroism so notable and involving the risk of life so
extraordinary as to set the individual apart from his comrades.

4.  Thus, the distinction between "conspicuous gallantry and intrepidity"
for award of the Medal of Honor and "extraordinary heroism" and
"extraordinary risk of life" for award of the Distinguished Service Cross
are quite clearly stated in Army regulation.

5.  Contrary to the applicant's contention, evidence shows the applicant
appealed to the Army Decorations Board at HRC for upgrading the FSM's award
of the Distinguished Service Cross to the Medal of Honor.  The Army
Decorations Board considered the request under Section 552 (b)(1) of Fiscal
Year 2002 National Defense Authorization Act.

6.  The Army Decorations Board determined that the FSM's degree of action
and service rendered did not meet the strict criteria for the Medal of
Honor.  The Commanding General of HRC concurred with the recommendation of
the Army Decorations Board to deny award of the Medal of Honor and affirm
award of the Distinguished Service Cross.  The applicant has presented no
evidence that the consideration by the Army Decorations Board on 5 August
2005 was improper.

7.  In the absence of compelling evidence which shows that the award
recommendation for the Medal of Honor and the appeal action were flawed,
improper or contrary to law, regulation and policy, there is insufficient
basis to recommend the decision to award the Distinguished Service Cross be
reversed and that the Medal of Honor be awarded instead.

8.  Based on all of the foregoing, there is insufficient evidence which
warrants a recommendation that the FSM's award of the Distinguished Service
Cross be upgraded to award of the Medal of Honor.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_JEV____  __BJE___  _DLL____  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  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.  While the decision of the ABCMR in this case is not favorable, the
Board wants the applicant, the fellow veterans and all others concerned to
know that this action in no way diminishes the heroism and sacrifice by the
FSM in his service to the United States of America.  The FSM distinguished
himself by gallantry in action on 22 September 1952 in Songowol, Korea, and
was awarded the Distinguished Service Cross, this Nation's second highest
award for heroism. Unquestionably, the FSM 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.




                                    __James E. Vick______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050014263                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060719                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  47   |107.0001.0000/MOH                       |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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