IN THE CASE OF:	  

		BOARD DATE:	  24 September 2008

		DOCKET NUMBER:  AR20080007387 


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, that his discharge document (WD AGO
53-55) be updated to show his correct unit of assignment; and to show that he was awarded the Bronze Star Medal, two Presidential Unit Citations, and a Certificate of Merit. 

2.  The applicant states, in effect, that he was assigned to the 89th Cavalry Reconnaissance Squadron, 9th Armored Division.  He also states, in effect, that his commanding officer was going to submit him for a Bronze Star Medal but was evacuated.  He continues to state, in effect, that he was given a Certificate of Merit but it was not on his discharge document and he finally states, in effect, that the 89th Cavalry Reconnaissance Squadron was awarded two Presidential Unit Citations.  

3.  The applicant provides a copy of his WD AGO 53-55 (Enlisted Record and Report of Separation Honorable Discharge); a copy of a Presidential Unit Citation for the 9th Armored Division; a copy of an unsigned, undated document titled “Good Conduct Medal” and “Certificate of Merit” in support of this 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 complete military records are not available for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the majority of the applicant’s records were lost or destroyed in that fire.  However, there are sufficient remaining documents to conduct a fair and impartial review of this case.

3.  The applicant’s WD AGO 53-55 shows that he was inducted into the Army of the United States on 6 November 1942 and entered active service on
13 November 1942.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 835 (Supply Clerk).

4.  Item 6 (Organization) of the applicant’s  WD AGO 53-55 shows that he was assigned to Company I, 355th Infantry Regiment on the effective date of his separation.

5.  Item 32 (Decorations and Citations) of the applicant’s WD AGO 53-55 shows that he was awarded the America Service Medal, the European African Middle Eastern Campaign Medal, the Good Conduct Medal, and the World War II Victory Medal. 

6.  Item 36 (Service Outside Continental U.S. and Return) of the applicant’s WD AGO 53-55, shows that he was assigned to the European Theater of Operations during the period 26 August 1944 to 13 December 1945.

7.  The applicant submitted an unsigned, undated copy of a document titled Certificate of Merit.

8.  War Department Technical Manual 12-235, in effect at the time of the applicant’s separation, provided guidance and instructions for the preparation of the forms to be given to Soldiers on their separation from active duty.  Chapter 3, 


of this technical manual, provided guidance on the appropriate form to be prepared for enlisted personnel at the time they were discharged, released from active duty, or retired.  The instructions for the completion of Item 6 (Organization) provided for entry of the unit designation for the last tactical or 
administrative and tactical unit, or similar element to which the Soldier was assigned, rather than the element of which he was a part while moving to a disposition center, reception station, or separation center.

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.  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.

10.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  In pertinent part, this regulation states that for U.S. military decorations the only acceptable source documentation is the order, letter, or memorandum which awards the decoration. Award certificates, citations, or separation certificates alone will not be the basis for entry of a decoration.  The Certificate of Merit was presented to during World War II to any individual commended after 6 December 1941 and before 1 January 1946 in a letter, certificate, or order of commendation signed by an officer in the grade or position of a major general or higher.  

11.  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 have his records corrected to show that he assigned to the 89th Cavalry Reconnaissance Squadron, that he is entitled to award of two Presidential Unit Commendations, and that he is entitled to have his records corrected to show award of a Certificate of Merit was carefully considered and found to be without merit.

2.  Evidence shows that the applicant was assigned to the 355th Infantry Regiment, 89th Infantry Division.  Therefore, he is not entitled to have his records corrected to show that he was assigned to the 89th Cavalry Reconnaissance Squadron.

3.  There is no evidence nor did the applicant submit any evidence that shows that the 355th Infantry Regiment was awarded the Presidential Unit Commendation.  Therefore, the applicant is not entitled to have his records corrected to show these awards

4.  There are no signed orders, certificate, or memorandum that shows the applicant was awarded the Certificate of Merit.  Therefore, he is not entitled to have his records corrected to show this award.

5.  The applicant also contends that he should be awarded the Bronze Star Medal.  However, there is no evidence indicating that he was ever recommended for or awarded the Bronze Star Medal by proper authority while serving on active duty, and he has failed to provide sufficient compelling evidence of an act of gallantry that would support award the Bronze Star Medal at this late date.  While the available evidence is insufficient for awarding the applicant a Bronze Star Medal, this in no way affects the applicant’s right to pursue his claim for the Bronze Star Medal 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

____X___  ___X____  ____X___   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.



      ___________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)                                         AR20080007387



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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