RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 October 2006
      DOCKET NUMBER:  AR20060000637


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Patrick McGann                |     |Chairperson          |
|     |Mr. David Gallagher               |     |Member               |
|     |Mr. Roland Venable                |     |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, award of the Bronze Star Medal with
“V” Device for heroism on 25 March 1951 at 1300 hours in Korea.

2.  The applicant states, in effect, that a recommendation for award of the
Bronze Star Medal with “V” Device for heroism (at 1300 hours on 25 March
1951 in Korea, he voluntarily exposed himself to devastating enemy fire
after three previous attempts to evacuate a seriously wounded Soldier were
unsuccessful, resulting in the deaths of the three men attempting the
evacuation, and he successfully evacuated the wounded Soldier) was rejected
on the basis that he had been awarded the Silver Star for heroism.  The
Silver Star was awarded for heroism (during the time frame 1100 to 1700
hours on 25 March 1951 in Korea, he was exceptionally courageous in leading
his company in the attack against stubborn resistance and in skillfully
employing the company in the defense against overwhelming numerical
superiority of the enemy and creating a determination in his men to fight
valiantly) on the same date and at approximately the same time.

3.  The applicant states that the recommendation for the Bronze Star Medal
with “V” Device was dated 11 October 1951 and the Silver Star was issued on

5 October 1951.  He states that there is no mention of his individual act
of heroism in the citation for the Silver Star which certainly would have
been stated if known.  He also states the citation for the Bronze Star
Medal with “V” Device only mentions the one act of heroism.

4.  In a letter, dated 10 April 2006, the applicant states that the
“Rescue” incident was initiated on 11 October 1951 by a captain, sergeant,
and a lieutenant.  He states that they had no knowledge that the battalion
was submitting an award recommendation for the Silver Star at that time.
He also states that the “Leadership” incident was submitted by a colonel
based on his very close observation of the applicant’s commanding Company G
in the maneuvering of his battalion during a three-day advance against
Chinese/Korean resistance.  He further states that it was obviously two
separate occurrences submitted by two independent individuals and should be
considered for two separate awards.

5.  The applicant provides a DA Form 639 (Recommendation for Award –
Heroism), dated 11 October 1951, with four enclosures; a map of where the
action took place; a proposed citation for the Bronze Star Medal with “V”
Device; an undated recommendation for heroism award; the decision to
disapprove the recommendation for the Bronze Star Medal with “V” Device,
dated 23 October 1951; the citation and orders for the Silver Star, dated 5
October 1951; a letter, dated 2 October 1991, from the wounded Soldier he
evacuated on 25 October 1951; a DD Form 214 (Report of Separation from the
Armed Forces of the United States); retirement orders, dated 5 November
1954; and a letter, dated 10 April 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 30 November 1954.  The application submitted in this case is
dated
30 December 2005.

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 limitations 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 entered active duty on 4 June 1946.  He served as an
infantry company commander in Korea.

4.  Headquarters, Eighth United States Army Korea (EUSAK) General Orders
Number 745, dated 5 October 1951, show the applicant received the Silver
Star for gallantry in action on 25 March 1951 in Korea.  Item 27 (Character
and Conditions of Terrain and Weather) on the DA Form 639 shows the weather
was cold and rainy with occasional sleet.  The DA Form 639 also shows that
his gallantry in action occurred between the hours 1100 to 1700.

5.  On 11 October 1951, the applicant was recommended for award of the
Bronze Star Medal with “V” Device for heroism that took place at
approximately 1300 hours on 25 March 1951 in Korea.  Item 27 on the DA Form
639 stated the weather was cold and rainy.

6.  On 23 October 1951, the recommendation for award of the Bronze Star
Medal with “V” Device was denied.  The approval authority cited that the
governing awards regulation stated, in pertinent part, that “Awards of
military decorations for heroism will be restricted to specific acts or
closely related series of acts (emphasis in the original) performed within
exceptionally short periods of time.”  The approval authority also stated
that since the date and time of day of the recommendation for the Bronze
Star Medal with “V” Device indicate that the action took place at 1300
hours on 25 March 1951 and records show that the applicant was previously
awarded the Silver Star for action that took place between the hours 1100
to 1700 on 25 March 1951, no further action was contemplated in this case.

7.  On 30 November 1954, the applicant was permanently retired by reason of
physical disability in the rank of captain.

8.  The applicant’s DD Form 214 shows the World War II Victory Medal, the
Army of Occupation Medal with Japan Clasp, the Combat Infantryman Badge,
the Silver Star, the Purple Heart, the Korean Service Medal, the United
Nations Service Medal, the National Defense Service Medal, the Parachutist
Badge, and the Glider Badge as authorized awards.

9.  In the processing of this case, a staff advisory opinion was obtained
from the Chief, Military Awards Branch, U.S. Total Army Human Resources
Command.  The opinion states that as a matter of long standing policy, a
recommendation which has been formally entered into channels, properly
processed, and correctly acted upon by a commander or other official vested
with the legal authority to act in finality is not subject to challenge or
reconsideration unless new “substantive” information which was not
presented at the time of decision is submitted with the new request.  The
opinion states that there is no evidence or new information, material
administrative error or impropriety in the processing and decision which
led to the disapproval of the applicant’s recommendation for award of the
Bronze Star Medal with “V” Device.  That office recommended that the
applicant’s request be denied.

10.  On 25 September 2006, the advisory opinion was furnished to the
applicant for comment.  He responded on 2 October 2006.  In summary, he
requested that the advisory opinion be reevaluated.  He stated that he
could not believe the denial was so lightly researched, that the
individuals he provided as witnesses were not contacted, and that the
certificates he provided were not verified.  He points out that the Silver
Star citation actually covers a two-day period and he described his heroic
actions.  He stated that in his opinion the two things that count were: (1)
when did his Silver Star time begin; and (2) whether either individual
initiating the awards knew that the other award was even being considered.
He indicated that the weather was dry and cold with no rain when he pulled
the Soldier back to their lines and that the rain started after he pulled
his company out and started a flank attack on the “hill.”  He also pointed
out that the award approval authority for the recommendation for the Bronze
Star Medal with “V” Device was not with his regiment and he knew very
little about this operation and he made this decision seven months after it
happened.  He requested that the Board recognize that he did a courageous
thing and deserves both awards for the two separate actions.

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent
part, that the Bronze Star Medal is awarded in time of war for heroism and
for meritorious achievement or service.  The bronze “V” device indicates
acts of heroism involving conflict with an armed enemy.

12.  Paragraph 3e of Army Regulation 600-45 (Decorations), in effect at the
time, stated, in pertinent part, “Awards of military decorations for
heroism will be restricted to specific acts or closely related series of
acts performed within exceptionally short periods of time.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that the Silver Star citation actually
covers a two-day period, the recommendation for this award states the
gallantry in action took place during the hours 1100 to 1700.

2.  Although the applicant contends that the weather was dry and cold with
no rain when he pulled the wounded Soldier back to their lines, the
recommendation for the Bronze Star Medal with “V” Device states the weather
was cold and rainy.

3.  The applicant’s contentions that the award approval authority for the
recommendation for the Bronze Star Medal with “V” Device was not with his
regiment, that he knew very little about this operation, and that he made
this decision seven months after it happened, were noted.  His first two
contentions very likely are correct, as the award authority for the Bronze
Star Medal (as well as for the Silver Star) was a commander not below the
grade of Major General.  Nevertheless, that commander was the award
approval authority at the time.  Both award recommendations show the two
separate actions occurred on the same day.  They also show that the time of
the action (1300) for which the Bronze Star Medal with “V” Device was
recommended occurred within the time of the action (1100 to 1700) for which
the Silver Star was recommended and approved.  The Board does not find it
appropriate to substitute its judgment, 55 years later, for the judgment of
the award approval authority at the time.

4.  While the decision is not favorable in this case, the Board wants the
applicant and all others concerned to know that this action in no way
diminishes the heroism and sacrifice by the applicant in service to the
United States.  His actions on 25 March 1951 were recognized with an award
of the Silver Star for gallantry in action against an armed enemy and the
applicant and all Americans should be justifiably proud of his service in
arms and the recognition of his heroism.

5.  Records show the applicant should have discovered the alleged error now
under consideration on 30 November 1954; therefore, the time for the
applicant to file a request for correction of any error expired on 29
November 1957.  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
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

PM_____  __DG___  __RV____  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.




                                  _____Patrick McGann___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000637                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061011                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107.0014                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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