RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060014277 


	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

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Thomas M. Ray

Member

Ms. Rea M. Nuppenau

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 correction of his military records to show award of the Bronze Star Medal. 

2.  The applicant states that he was awarded a Certificate of Merit for “exemplary conduct in ground combat against an enemy of the United States” and that based on current regulation and this certificate, he should be awarded the Bronze Star Medal.

3.  The applicant provides a copy of his Certificate of Merit; an Order of the Day, dated 13 March 1945; extracts from the internet and a magazine; a listing of his awards; and a letter from the Military Awards Branch, Human Resources Command, dated 6 September 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 30 December 1945, the date of his discharge.  The application submitted in this case is dated 20 September 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 for review.  A fire destroyed approximately 18 million service member's records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, there are sufficient documents available to conduct a fair and impartial review of this specific request.

4.  The applicant was inducted into the Army of the United States on 
25 May 1942.  He served in the European Theater of Operations from 
1 December 1944 until his return to the United States on 25 December 1945.  He attained the rank of technician fifth grade.  

5.  The applicant’s Separation Qualification Record (WD AGO Form 100) shows that he served in the European Theater of Operations for 13 months.  He drove a full track military vehicle used for towing 155 mm howitzers into position.  He also made minor repairs to his vehicle.

6.  On 13 March 1945, the Commander of the 66th Infantry Division published an Order of the Day wherein he stated, in part, “The magnificent spirit with which each one of you has endured hardships, and the courage and tenacity with which you have carried on in these past two months, has filled everyone with confidence and self-assurance.  Some of you have seen your friends die.  You have suffered wounds and pain.  You have felt the miseries of cold and hunger and you have experienced the terror and drudgery of war.”  “Our artillerymen have been outstanding, and their teamwork and cooperation with infantry units has been superb.”

7.  The applicant, while a member of the 721st Field Artillery Battalion, 
66th Infantry Division, was awarded a Certificate of Merit in recognition of conspicuously meritorious and outstanding performance of military duties from 
1 January to 8 May 1945 in Brittany, France.  It states, in part, "When his respective section's gun was on a special mission, he drove his tractor and the piece into firing position often under trying weather conditions or enemy artillery fire.  His exemplary devotion to duty and keen interest in his organization reflect great credit upon himself and the military service."

8.  The applicant's Enlisted Record and Report of Separation Honorable Discharge (WD AGO Form 53-55) shows in Item 30 that his military occupational specialty was 735 (Full Track Driver).  Item 31 shows his qualification as a marksman with his carbine.  Item 33 (as corrected) shows his awards as the Army Good Conduct Medal, American Campaign Medal, European-African-Middle Eastern Campaign Medal with one bronze service star, World War II Victory Medal, Army of Occupation Medal with Germany Clasp, and the Driver and Mechanic Badge with Driver-T and Mechanic Bars.  It does not show award of the Bronze Star Medal or the Combat Infantryman Badge.

9.  Army Regulation 600-8-22 also provides, in pertinent part, that the Bronze Star Medal is awarded for heroism and for meritorious achievement or service in military operations against an armed enemy.  The Bronze Star Medal is authorized for each individual who was cited in orders or awarded a certificate for exemplary conduct in ground combat between 7 December 1941 and 
2 September 1945 or whose such achievement or service, during that period, was confirmed by documents executed prior to 1 July 1947.  An award of the Combat Infantryman Badge or the Combat Medical Badge is considered to be a citation in orders.  This means, in effect, that the Bronze Star Medal is to be awarded to individuals who were authorized either badge for service during World War II.

10.  On 8 September 2006, the Chief, Military Awards Branch, Human Resources Command, who is the proponent for the awards program, wrote the applicant a letter explaining that the Certificate of Merit was established by an Act of Congress on 3 March 1847.  This Act empowered the President of the United States to grant a certificate of merit to any private Soldier who had distinguished himself by gallantry performed in the presence of the enemy.  A medal was authorized to accompany the certificate in 1905 and the criteria changed to allow award of any private or noncommissioned officer who distinguished himself by merit or courage whom the President deemed worthy of the award.  The Certificate of Merit was declared obsolete on 9 July 1918 and was discontinued by the United States Army.  Subsequent to this, particularly during World War II, some field commands designed and awarded locally reproduced certificates titled "This Certificate of Merit".  However, replacement of these locally designed certificates with the Bronze Star Medal is not authorized. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's argument that he should be awarded the Bronze Star Medal based on his receiving a certificate of merit in 1945 is not sufficiently convincing.  This Certificate of Merit recognizes the applicant for his conspicuously meritorious and outstanding performance of duty under trying weather conditions or enemy artillery fire.  It does not show "exemplary conduct in ground combat against an armed enemy."

2.  Furthermore, the proponent for the awards program has clearly stated that this particular certificate of merit is different from the certificate issued prior to
9 July 1918 and does not qualify for replacement with the Bronze Star Medal.

3.  In view of the above, the applicant's request for award of the Bronze Star Medal should not be granted.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 December 1945, the date of his separation from active duty.  However, the ABCMR was not established until 
2 January 1947.   As a result, the time for the applicant to file a request for correction of any error or injustice expired on 1 January 1950.  The applicant did 
not file within the 3-year statute of limitations; however, based on the available evidence, 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

__TMR __  __RMN__  __JTM __  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.




___John T. Meixell_____
          CHAIRPERSON




INDEX

CASE ID
AR20060014277
SUFFIX

RECON
 
DATE BOARDED
20070417 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
107.0014
2.

3.

4.

5.

6.