RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 March 2007
      DOCKET NUMBER:  AR20060011939


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Roland S. 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 that his Bronze Star Medal with “V” device be
upgraded to a Silver Star.

2.  The applicant stated, in a 28 July 2006 letter to the American Legion
Military Board Representative, that his company commander recommended him
for the Silver Star.  The Army kept telling him that two eyewitnesses are
needed in order to qualify for the Silver Star.  After years of searching,
he located another Soldier who was in his squad and was an eyewitness to
the event.  In a 12 June 2006 letter to the American Legion Military Board
Representative, the applicant stated [Lieutenant] Colonel S___, who at that
time was his company commander, was furious when he learned the Silver Star
was downgraded.  [Lieutenant Colonel S___] was a Ranger, a recipient of
three Combat Infantryman Badges, three Silver Stars, seven Bronze Star
Medals, and the Distinguished Flying Cross.  Certainly he was in a better
position to evaluate the merit of the applicant’s act that evening than
someone sitting behind a desk.

3.  The applicant provides two letters, one dated 28 July 2006 and one
dated     12 June 2006, to the American Legion Military Board
Representative; a DA Form 638 (Recommendation for Award) with proposed
narrative, three maps, and a proposed citation; a Bronze Star Medal with
“V” device award certificate; a letter dated 3 January 1998; and a letter
dated 12 July 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 1 April 1998, the date he was awarded the Bronze Star Medal
with “V” device. The application submitted in this case is dated 19 June
2006.

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’s military records are not available to the Board for
review.  A fire destroyed approximately 18 million service members’ records
at the National Personnel Records Center in 1973.  It is believed that the
applicant’s records
were lost or destroyed in that fire.  However, there were sufficient
documents remaining in a reconstructed record for the Board to conduct a
fair and impartial review of this case.

4.  The applicant was inducted into the Army on 27 September 1951.  He
served in Korea.  He was honorably released from active duty on 17
September 1953.

5.  On 3 January 1998, Lieutenant Colonel S___, retired, recommended the
applicant for award of the Silver Star for gallantry in action on the night
of            8 August 1952.  Lieutenant Colonel S___ stated that, during
an intense firefight, the applicant voluntarily left the safety of his
covered position and crawled through open, fire-swept terrain to retrieve
the body of a fallen comrade.  After he recovered the body the applicant,
as a member of the rear guard, personally floated the body about a mile
downstream to a collection point while continually exposing himself to
intermittent automatic weapons and mortar fire.

6.  U. S. Total Army Personnel Command Permanent Orders 91-3 dated 1 April
1998 awarded the applicant the Bronze Star Medal with “V” device for
heroism on 8 August 1952.

7.  The applicant provided a 12 July 2006 letter from a former platoon
member.  This individual stated that, on the night of 8 August 1952, their
company commander, Lieutenant S___, led their platoon on a raid on Hill
117.  The Chinese ambushed them and they were in a fierce firefight.
During the firefight, he saw the applicant creep over the field and recover
the body of Sergeant M___.

8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part,
that the Silver Star is awarded for gallantry in action against the enemy.
The required gallantry (spirited and conspicuous acts of heroism and
courage) must have been performed with marked distinction.

9.  Army Regulation 600-8-22 provides, in pertinent part, that the Bronze
Star Medal is awarded in time of war for heroism and for meritorious
achievement or service.

10.  Army Regulation 600-8-22 defines “gallantry in action as spirited and
conspicuous acts of heroism and courage, the minimum level of valorous
performance in combat consistent with a recommendation for the Silver Star.
 “Heroism” is defined as extreme courage demonstrated in attaining a noble
end.

11.  Army Regulation 600-45 (Decorations), in effect at the time, stated
the Silver Star award approval authority was the commanding general of any
separate force outside the continental United States or by subordinate
commanders to whom he may delegate that authority, provided that the
authority will not be delegated to any commander below the grade of major
general.

12.  On 15 March 2007, the U. S. Army Human Resources Command informed the
Board analyst that active duty colonels, O-6s, are members of the Awards
Board.

DISCUSSION AND CONCLUSIONS:

1.  Lieutenant Colonel (then Lieutenant) S___ had recommended the applicant
for award of the Silver Star.  In the recommendation, Lieutenant Colonel
S___ stated that during an intense firefight the applicant voluntarily left
the safety of his covered position and crawled through open, fire-swept
terrain to retrieve the body of a fallen comrade.  The applicant provided a
12 July 2006 letter from a former platoon member who also stated that
during a fierce firefight after they were ambushed by the Chinese he saw
the applicant creep over the field and recover the body of Sergeant M___.

2.  The former platoon member’s statement has been carefully considered;
however, it does not add any further details to the original
recommendation.

3.  The applicant contended that Lieutenant Colonel S___ was in a better
position to evaluate the merit of his act that evening than someone sitting
behind a desk.  The colonels who sat on the applicant’s award board that
recommended he receive the Bronze Star Medal with “V” device in lieu of the
Silver Star may currently be serving in a staff position; however, by
virtue of their length of service it is reasonable to presume that most if
not all of them have also seen service in a combat area.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 April 1998; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on          31 March 2001.  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

__lds___  __jtm___  __rsv___  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.




                                  __Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060011939                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070322                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |107.0007                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]