IN THE CASE OF:	  

	BOARD DATE:	  15 July 2008

	DOCKET NUMBER:  AR20080001791 


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 award of the Bronze Star Medal and the Silver Star.

2.  The applicant states that he was supposedly put in for the Bronze Star Medal and the Silver Star.  When he was wounded in action on 29 November 1944, he assisted in getting a medic to safety at a place called Itersweiler, France.

3.  The applicant provides his WD AGO Form 53-55 (Enlisted Record and Report of Separation).

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 was inducted into the Army on 7 March 1944 and entered active duty that date.  He arrived in the European Theatre of Operations on 20 October 1944.  

4.  The applicant was honorably discharged on 29 April 1946.  His WD AGO Form 53-55 shows he was awarded the Combat Infantryman Badge, the Army Good Conduct Medal, the Purple Heart, the Army of Occupation Medal with Germany clasp, the “American Theater” (probably meant to be the American Campaign Medal), the European-African-Middle Eastern Campaign Medal, and the World War II Victory Medal.  It also shows he participated in two campaigns.

5.  A search of unit records at the National Archives in College Park, MD, failed to show that the applicant had been recommended for award of the Bronze Star Medal or the Silver Star.

6.  Army Regulation 600-8-22 (Military Awards) provides 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.

7.  Army Regulation 600-8-22 provides that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  

8.  Army Regulation 600-8-22 also provides that 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 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.  Therefore, the Bronze Star Medal is to be awarded to individuals who were authorized either badge for service during World War II.

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 a 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.  

10.  Army Regulation 600-8-22 authorizes award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation.  Authorized bronze service stars will be worn on the appropriate campaign or service medal, including the European-African-Middle Eastern Campaign Medal. 

DISCUSSION AND CONCLUSIONS:

1.  While the available evidence is insufficient for awarding the applicant the Silver Star or the Bronze Star Medal he contends he was recommended for in regard to his actions on 29 November 1944, this in no way affects his right to pursue his claim for these awards by submitting a request through his Member of Congress under the provisions of 10 USC 1130.  

2.  The applicant is administratively eligible for award of the Bronze Star Medal based upon his receipt of the Combat Infantryman Badge.  

3.  The applicant is eligible to wear two bronze service stars on his European-African-Middle Eastern Campaign Medal, and his WD AGO Form 53-55 should be amended to reflect this fact.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__xx____  ___xx___  ____xx__  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:

     a.  awarding him the Bronze Star Medal based upon award of the Combat Infantryman Badge; and

     b.  adding the Bronze Star Medal to his WD AGO Form 53-55 and amending his WD AGO Form 53-55 to show he is eligible to wear two bronze service stars on his already-awarded European-African-Middle Eastern Campaign Medal.

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 or the Bronze Star Medal for his actions on 29 November 1944.  




 _   ______xxxx______________
       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)                                         AR20080001791





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ABCMR Record of Proceedings (cont)                                         AR20080001791



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