IN THE CASE OF:	  

	BOARD DATE:	  17 June 2008

	DOCKET NUMBER:  AR20080001462 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests upgrade of his award of the Silver Star to a Distinguished Service Cross. 

2.  The applicant states that in May 1945, he was eligible for award of the Distinguished Service Cross but decided to accept the Silver Star instead so other members in his litter squad could receive the Bronze Star Medal.  He further adds that his commanding officer told him that if he had accepted the Distinguished Service Cross, the other members of his litter squad would not have received any medals.  He concludes that he would like to have this resolved and set the record straight.

3.  The applicant provides a copy of his WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge), dated 20 November 1945, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a 
substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  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.

3.  The applicant's WD AGO Form 53-55 shows he was inducted in the Army of the United States on 19 March 1943 and entered active duty on 26 March 1943. He was trained in military occupational specialty (MOS) 861 (Surgical Technician).  This form also shows that, at the time of his separation, the applicant was assigned to 3rd Battalion, 168th Infantry Regiment, 34th Infantry Division. 

4.  The applicant's WD AGO Form 53-55 shows he served in the European-African-Middle Eastern Theater of Operations (EAMETO) during the period
30 September 1943 through 26 October 1945.

5.  The applicant's AGO Form 53-55 shows he completed 6 months and 1 day of continental service and 2 years, 1 month, and 24 days of foreign service.  He was honorably separated on 20 November 1945.

6.  Item 31 (Military Qualification and Date) of the applicant's WD AGO Form   53-55 shows he was awarded the Expert Marksmanship Qualification badge with Rifle Bar in April 1943 and the Combat Medical Badge in June 1944.

7.  Item 32 (Battles and Campaigns), of the applicant’s AGO Form 53-55, shows he participated in the Naples-Foggia (Ground), the Rome-Arno, the Northern Apennines, and the Po Valley campaigns during WWII.

8.  Item 33 (Decorations and Citations), of the applicant's AGO Form 53-55, shows the applicant was awarded the European-African-Middle Eastern Campaign Medal with four bronze service stars, the Bronze Star Medal, the Silver Star Medal, the Purple Heart Medal, the Good Conduct Medal, and the World War II Victory Medal.



9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Distinguished Service Cross is awarded to a person, who while serving in any capacity with the Army, distinguished himself or herself by extraordinary heroism while engaged in action against an enemy of the United States not justifying award of the Medal of Honor.  The act or acts of heroism must have been so notable and have involved risk of life so extraordinary as to set the individual apart from his or her comrades.

10.  Paragraph 12 of Army Regulation 600-45 (Decorations), in effect at the time, governed award of the Distinguished Service Cross.  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, distinguished himself or herself by extraordinary heroism in connection with military operations against an armed enemy.  Paragraph 12b states “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.”

11.  Army Regulation 600-8-22 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.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

12.  Title 10 of the United States Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to upgrade of his Silver Star to the Distinguished Service Cross.  However, he did not submit a complete copy of the original recommendation for award of the Silver Star with proposed citation, original eyewitness affidavits, and the original chain-of-command endorsements.

2.  The Distinguished service Cross and Silver Star are the second and third highest awards for valor.  The requirements for each award are:

	a.  Distinguished Service Cross – While serving in any capacity with the Army, displaying extraordinary heroism not justifying the award of a Medal of Honor; while engaged in an action against an enemy of the United States.  The act or acts of heroism must have been so notable and have involved risk of life so extraordinary as to set the individual apart from his or her comrades.
	
	b.  Silver Star – Requires gallantry in action against the enemy.  The gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.

3.  The ABCMR acknowledges and applauds the applicant's valor and courage that led to award of the Silver Star, clearly under extremely hazardous conditions. However, in the absence of the original recommendation for award of the Silver Star with proposed citation, original eyewitness affidavits, and the original chain-of-command endorsements, it is extremely difficult to make the necessary distinctions as to whether a particular act constitutes "extraordinary heroism", or "gallantry in action."

4.  The applicant’s record shows that a decision was apparently made to award him the Silver Star for certain actions during World War II.  However, without the original recommendation, eye witness affidavits, and proposed citation, a determination of the appropriateness of that decision cannot be made.  For example, it is not known whether the applicant's immediate commander recommended he be awarded a Distinguished Service Cross and the recommendation was downgraded in favor of a Silver Star.  Conversely, it is not known whether he was originally recommended for a Bronze Star Medal for Valor, but upgraded to a Silver Star by the approving authority.

5.  Nevertheless, the decision of whether to award an individual a decoration and which decoration to award is a judgment call made by the commander having award approval authority.  Commanders at the time of the act, or shortly thereafter, determined that the applicant's actions were so extraordinary and so noteworthy as to warrant award of the Silver Star.  Almost sixty years have passed since the applicant served in WWII and the ABCMR is not privy to the decision process used at that time.  There simply is insufficient evidence to support an upgrade of the applicant's Silver Star to a Distinguished service Cross in this case.


6.  While the available evidence is insufficient for upgrading and/or awarding the applicant the Distinguished Service Cross, this in no way affects the applicant’s right to pursue his claim for the Distinguished Service Cross by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.


								XXX
      _______________________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080001462



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080001462



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1