IN THE CASE OF:	  

	BOARD DATE:	       18 September 2008

	DOCKET NUMBER:  AR20080008054 


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 that his Silver Star be upgraded to the Distinguished Service Cross.

2.  The applicant states that he wants his award of the Silver Star upgraded to the Distinguished Service Cross and replacement of his lost badges and medals.

3.  The applicant provides copies of his Enlisted Record and Report of Separation Honorable Discharge (WD AGO Form 53-55); General Orders Number 400, awarding him the Silver Star; letters of support from the American Legion and a Filipino living in Virginia; a letter from his doctor; a certificate of appreciation for his World War II service; and a Certificate of Continuous Membership in the American Legion for over 50 years.

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 requests the replacement of his lost badges and medals.  Army Retiree and Veterans who terminated their service prior to 1 October 2002 must submit requests to the National Personnel Records Center (NPRC) in St. Louis, Missouri.  The NPRC will verify the awards to which a retiree/veteran is entitled and forward the request with the verification to the appropriate service department for issuance of the medals.  Requests submitted to the NPRC may be submitted via a letter or the Standard Form (SF) 180 (which can be obtained online).  Requests must include a copy of the retiree’s/veteran’s separation or discharge paperwork and any other supporting documentation to substantiate the request.  Based on the information provided, the applicant’s issue of replacement of lost badges and medals will not be discussed further in this proceeding.

3.  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.  

4.  The applicant’s WD AGO Form 53-55 shows:

	a.  that his organization was Company F, 27th Infantry Regiment;

	b.  that he was inducted into the Army of the United States on 29 July 1942 and entered active duty on 12 August 1942;

	c.  that he was an infantryman with a military occupational specialty of 604 (Light Machine Gunner);

	d.  that he was assigned to and arrived in the Asiatic-Pacific Theater of Operations (APTO) on 25 April 1943;

	e.  that he participated in two campaigns and was awarded the Combat Infantryman Badge;

	f.  that his awards include the Silver Star, Good Conduct Medal, Asiatic-Pacific Service Medal with two bronze service stars, and the Philippine Liberation Medal with one bronze service star;

	g.  that he returned to the United States on 24 October 1945; and

	h.  that he did not receive any wounds while in action.

5.  General Orders Number 400, 25th Infantry Division, dated 14 August 1945, awarded the applicant the Silver Star for gallantry in action against the Japanese forces near Lumboy, Luzon, Philippine Islands, on 14 February 1945.  The citation reads, in part, as follows:  “When a friendly reconnaissance patrol was trapped by the enemy, a rifle squad, of which [the applicant] was a member, was dispatched to go to their aid until reinforcements in strength could be brought up. As the rescue squad cautiously advanced toward the enemy, [the applicant], becoming impatient with the slow rate of advance, voluntarily and deliberately picked up the machine gun and ammunition, and with complete disregard for his own personal safety while in full view of the enemy and under intense enemy rifle and machine gun fire, dashed to a position overlooking an enemy machine gun, [that] was supported by a squad of riflemen.  He set up the machine gun and delivered an effective and withering fire upon the enemy, killing the entire machine gun crew.  The remaining riflemen crawled to positions above and on the same hill with him and delivered intense fire upon his position.  Stubbornly maintaining his position, he returned fire and succeeded in killing three more enemy soldiers.  As a result of his actions the enemy fire was halted and the patrol permitted to withdraw.  [The applicant’s] gallant actions and devotion to duty were mainly responsible for the safe withdrawal of the trapped patrol and for the later advance of the company....”

6.  The letter of support written by the Adjutant from the applicant’s American Legion Post states that he was prompted by a selfless concern for his fellow Soldiers, showed great initiative by leaving the security of his patrol, and advanced on an alerted enemy alone.  He bravely exposed himself to the enemy, and employed a weapon, normally served by a crew of three, with great effect.  He smashed a concentration of the enemy which had threatened to annihilate a hard-pressed American patrol.  When he was attacked by the remainder of the enemy, he refused to give ground, coolly maintained his position, and successfully dispatched the attackers.  Given these circumstances, the author feels that the applicant’s individual courage is deserving of extraordinary recognitions.

7.  The letter of support from the Filipino, now residing in Virginia, states that the Filipino-American community in Southwest Virginia is forever grateful for the services and heroism of the applicant and his fellow Soldiers who served in the Philippine Islands.

8.  The applicant’s doctor writes in a letter of support that the applicant experiences flashbacks of his service in the Philippine Islands during World War II, causing him to have panic attacks, bedwetting, and sleepless nights.  The doctor opines that the applicant suffers from post traumatic stress syndrome.

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) governed award of the Distinguished Service Cross at the time in question.  The regulation stated that the Distinguished Service Cross was awarded to any person who, while serving in any capacity with the Army of the United States, shall have distinguished himself or herself by extraordinary heroism in connection with military operations against an armed enemy.  Paragraph 12b stated the standards for this award as “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 (Military Awards) 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.  

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 available evidence clearly shows that the applicant’s actions of gallantry were worthy of award of the Silver Star.  However, the evidence is not sufficiently convincing to show that the applicant’s gallant actions rose to the level of “extraordinary heroism not justifying award of the Medal of Honor” required for award of the Distinguished Service Cross.  

2.  While the available evidence is insufficient for 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/her Member of Congress under the provisions of 10 USC 1130.

3.  In view of the above, the applicant’s request should be denied.

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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080008054



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