IN THE CASE OF:	

	BOARD DATE:	  10 July 2008

	DOCKET NUMBER:  AR20080001788


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, in effect, award of the Silver Star (SS).

2.  The applicant states, in effect, he is supposed to receive the SS.

3.  The applicant provides no additional documents 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 record is not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.
3.  However, there were sufficient documents remaining in the NPRC file for the Board to conduct a fair and impartial review of this case.  This case is being considered using reconstructed records, which primarily consist of the applicant's WD AGO Form 53-55, a separation document correction (DD Form 215), dated 15 July 1986, and DA Forms 1577 (Authorization for Issuances of Awards), dated 17 October 1986, 17 June 1988, and 29 July 1988.

4.  The applicant's WD AGO Form 53-55 shows he was inducted into the Army and entered active duty on 16 April 1942.  It also shows that he served in the European Theater of Operations (ETO) from 5 December 1943 through 6 July 1945, and that he participated in the Normandy, Northern France, Rhineland, Central Europe, and Ardennes campaigns of World War II.  It also shows that he held and served in military occupational specialty (MOS) 607 (Light Mortar Gunner) with Company C, 507th Parachute Infantry Regiment.

5.  As a amended by a DD Form 215 issued on 15 July 1986, Item 33 (Decorations and Awards) of the applicant's WD AGO Form 53-55, confirms he received the Purple Heart (PH), Distinguished Unit Badge (DUB), European-African-Middle Eastern (EAME) Campaign Medal; and Army Good Conduct Medal (AGCM), Item 34 (Wounds Received In Action) shows he received a shrapnel wound to this left leg on 6 June 1944, and Item 55 shows he was a Prisoner of War (POW) from 6 June 1944 through 9 May 1945.

6.  DA Forms 1577 issued by the Army Reserve Personnel Center (ARPERCEN) on 17 October 1986, 17 June 1988, and 29 July 1988, show the applicant was authorized to be issued the following awards:  Bronze Star Medal (BSM); PH; AGCM; DUB; American Campaign Medal (ACM); EAME Campaign Medal with bronze arrowhead and 1 silver service star; Combat Infantryman Badge (CIB); World War II Victory Medal; Army of Occupational Medal (AOM) with Germany Clasp; Marksman Marksmanship Qualification Badge with Rifle Bar; and POW Medal.  The 17 October 1986 DA Form 1577 contains the entry "A silver service star is awarded in lieu of five bronze service stars" in the remarks section.  There are no documents in the applicant's NPRC file that indicate he was ever recommended for or awarded the SS by proper authority.

7.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 3-1 states, in pertinent part, that the decision to award an individual a decoration and as to which award is appropriate are both subjective decisions made by the commander having award approval authority.  Paragraph 3-10 contains guidance on award of the SS.  It states, in pertinent part, that it is awarded to member's cited for gallantry in action.  The required gallantry, while of a lesser degree than that required for the Distinguished Service Cross, must nevertheless have been performed with marked distinction.

8.  Paragraph 5-13 of the awards regulation contains guidance on the EAME Campaign Medal.  It states, in pertinent part, that a bronze service star is authorized with this award for each campaign a member is credited with participating in while serving in the ETO and that a silver service star is used in lieu of 5 bronze service stars to denote participation in 5 campaigns.

9.  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's contention that he should have received a SS was carefully considered.  However, there is no evidence indicating that he was ever recommended for or awarded the SS by proper authority while serving on active duty, and he has failed to provide any evidence related to an act of gallantry that would support award of the SS at this time.  It is possible the applicant interpreted the remark "a silver service star is awarded in lieu of five bronze service stars" contained on the 17 October 1986 DA Form 1577 he received to mean he should have been awarded the SS.  However, the silver service star referred to in this remark is authorized for wear on his EAME Campaign Medal to denote his participation in five campaigns while serving in the ETO during World War II, and not to award of the SS for gallantry, which could only be authorized based on a valid recommendation.

2.  While the available evidence is insufficient for awarding the applicant a SS, this in no way affects the applicant’s right to pursue his claim for the SS by submitting a request, with an award recommendation and supporting evidence, through his Member of Congress under the provisions of 10 USC 1130.

3.  The evidence does show that the applicant is entitled to the silver service star referred to above with his EAME, and to the other awards authorized in the 
DA Forms 1577 on file.  Therefore, it would be appropriate to correct his separation document by adding these awards at this time.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ___x ____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Item 33 of his 1 October 1945 WD AGO Form 53-55 by deleting the current list of awards and replacing it with the entry “Bronze Star Medal, Purple Heart, Army Good Conduct Medal, Distinguished Unit Badge, European-African-Middle Eastern Campaign Medal with bronze arrowhead and 1 silver service star, American Campaign Medal, World War II Victory Medal, Army of Occupation Medal with Germany Clasp, Prisoner of War Medal, Combat Infantryman Badge, and Marksman Marksmanship Qualification Badge with Rifle Bar”; and by issuing him a correction to his separation document that includes this change.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the Silver Star Medal.



      ________x____________
             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)                                         AR20080001788



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ABCMR Record of Proceedings (cont)                                         AR20080001788


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