IN THE CASE OF:	  

	BOARD DATE:	  
	DOCKET NUMBER:  AR20080008825 


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, whose request was submitted to the Army Board for Correction of Military Records (ABCMR) by his Member of Congress (MOC), requests in effect, reconsideration for an upgrade of the Bronze Star Medal, with “V” Device, to the Silver Star.

2.  In his application to the Board, the applicant states, in effect, that his company commander, a colonel who at the time was a lieutenant wrote, “I witnessed the applicant’s act of heroism.”  The applicant then states, in effect, the sergeant who covered him [on the battlefield] has since passed away.  He then asks the Board, “Isn’t my company commander’s witness of the act sufficient?  The Board kept requesting another eyewitness.  Why did they accept the single eyewitness (his company commander’s) for the Bronze Star Medal, with “V” Device?”

3.  In the MOC’s request, she states, in effect, that the amount of time and overall administrative processing of her constituent’s claim concerns her.  She asks that her constituent be given definitive and exhaustive consideration for the Silver Star.  She states that the applicant is a true hero and has documented his experiences beautifully so that many may share in his remarkable experiences.  It is our duty, she states, based on his commitment to service that we provide him every opportunity to be duly honored.

4.  The applicant’s MOC provides a copy of his DD Form 149, Application for Correction of Military Record, and a copy of the Record of Proceedings for Docket Number AR20060011939, which was considered by the Board on 22 March 2007.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records, which were summarized, in previous considerations of the applicant's case by the Army Board for the Correction of Military Records in Docket Number AR20060011939, on 22 March 2007, and in Case Number AR20070007143, which was administratively closed on 1 October 2007, because the applicant did not provide new evidence or argument that was not considered at the time of the ABCMR’s prior consideration.

2.  The evidence shows that the applicant also submitted an earlier request for an upgrade of the Bronze Star Medal, with “V” Device, to a Silver Star [Case Number AR2000040004] on 17 March 2000.  This request was administratively closed with the applicant being provided guidance to exercise his rights under the provisions of Title 10, US Code, Section 1130, since it was believed he had not yet exhausted all administrative remedies available to him.

3.  Although the Board which considered the applicant’s request on 22 March 2007 denied his request to upgrade his Bronze Star Medal, with “V” Device, to a Silver Star, based upon the Statute of Limitations, the evidence was fully considered on its merits in that case.  The evidence and arguments are once again being fully considered in this case as an exception to the ABCMR’s rules governing reconsideration and in exercise of its equitable authority.

4.  The evidence shows the applicant was recommended for award of the Silver Star by his wartime commander on 3 January 1998 for his gallantry in action on 8 August 1952.  In the recommendation, the wartime commander stated that during an intense firefight, the applicant had volunteered to leave the safety of his covered position and had crawled through open, fire-swept terrain to retrieve the body of a fallen comrade.  After he recovered the body, the applicant, as a member of the rear guard, personally floated the body about a mile downstream to a collection point while continually exposing himself to intermittent automatic weapons and mortar fire.

5.  In a letter the applicant wrote to a representative of the American Legion, the applicant admitted he had not been alone when his fallen comrade’s body had 

been floated down the river to the collection point.  In this letter he wrote, “The only other witness, besides [then] Lt. S [the lieutenant colonel who recommended him for award of the Silver Star] was Sgt. BH who accompanied me when I carried the body down the Imjin River.  He passed away soon after the Korean War.”

6.  In yet another letter to a representative of the American Legion, the applicant stated his wartime company commander was furious when he learned the Silver Star had been downgraded.  His wartime commander, during his career, was the recipient of three Combat Infantryman Badges, three awards of the Silver Star, seven Bronze Star Medals, and the Distinguished Flying Cross.  The applicant opined that his wartime commander was certainly in a better position to evaluate the merit of his act on the evening of 8 August 1952 than someone sitting behind a desk.

7.  In an application the applicant submitted to the ABCMR on 17 March 2000, in an addendum to his DD Form 149, the applicant stated, “Lt. Col. S asked if I wanted to apply for correction.  I told him I was happy to receive an award after so many years after the event.  In retrospect, I believe I earned his recommendation for the Silver Star.”

8.  The applicant was awarded the Bronze Star Medal, with “V” Device, by Permanent Orders 91-3 prepared by the US Total Army Personnel Command [now the US Army Human Resources Command (AHRC)], Alexandria, Virginia, on 1 April 1998, for the applicant’s heroism on 8 August 1952.

9.  On 12 July 2006, the applicant was provided a notarized statement by an individual who identified himself as a rifleman who had been assigned to the 2nd Platoon, Company L, 15th Infantry Regiment, 3rd Division, in Korea, and had been an eyewitness to the event.  In this statement of support, the alleged eyewitness stated, on the night of 8 August 1952 their company commander [the person who recommended the applicant for award of the Silver Star], had led their platoon on a raid on Hill 117.  Just before they reached the hill, the Chinese ambushed them.  They were in a fierce firefight.  The Chinese used burp guns, threw concussion hand grenades, and fired mortar rounds at them.  During the firefight, he saw the applicant creep over the field and recover the noncommissioned officer who had been killed in the action.

10.  The evidence and the Record of Proceedings shows that an analyst on staff of the ABCMR inquired of and was informed by AHRC representatives that 

active duty colonels, pay grade O-6, are members of the Army’s Awards Board.  It is important at this point, in view of the applicant’s opinion that the individual who recommended him for award of the Silver Star was in a better position to better evaluate the merits of his act on the evening of 8 August 1952 than someone sitting behind a desk, to defuse this myth.  Colonels who sit on the Army’s Awards Board are the product of many years of service and during their careers alternate between service in staff positions, being educated militarily, and commanding troops at the ever increasing levels of responsibility of company, battalion, and in some cases at the brigade level.

11.  Army Regulation 15-185, states, in effect, that the ABCMR will consider individual applications that are properly brought before it.  The ABCMR will decide cases on the evidence of record – evidence that is submitted by applicants in support of their issue and evidence that is contained in their service personnel records.  It is not an investigative body. 

12.  Army Regulation 600-8-22, paragraph 3-10 states, in pertinent part, that the Silver Star is awarded to a person who, while serving in any capacity with the U.S. Army, is cited for gallantry in action against an enemy of the United States while engaged in military operations involving conflict with an opposing foreign force, or while serving with friendly foreign forces engaged in armed conflict against an opposing armed force in which the United States is not a belligerent party. The required gallantry, while of a lesser degree than that required for the Distinguished Service Cross, must nevertheless have been performed with marked distinction.

13.  Army Regulation 600-8-22 defines “gallantry in action” as spirited and conspicuous acts of heroism and courage.

14. Army Regulation 600-8-22 defines heroism as extreme courage demonstrated in attaining a noble end.  Varying levels of documented heroic actions are necessary to substantiate recommendations for the Bronze Star Medal, with “V” Device, in connection with military operations against an armed enemy.  This phrase covers all military operations including combat, support, and 
supply which have a direct bearing on the outcome of an engagement or engagements against armed opposition.  To perform duty, or to accomplish an act or achievement in connection with military operations against an armed enemy, the individual must have been subjected to either personal hazard as a result of direct enemy action, or the imminence of such action, or must have had the conditions under which his or her duty or accomplishment took place complicated by enemy action or the imminence of enemy action.


DISCUSSION AND CONCLUSIONS:

1.  The evidence is clear, the applicant was recommended for award of the Silver Star by his wartime commander on 3 January 1998 for his achievements in action on 8 August 1952, while they served in Korea.

2.  The applicant’s wartime commander submitted the recommendation to the Army’s Awards Board for approval action and after having considered the recommendation, the Army’s Awards Board downgraded the recommendation and approved award of the Bronze Star Medal, with “V” Device, for the applicant. The applicant was awarded the Bronze Star Medal, with “V” Device, in Permanent Orders published on 1 April 1998.

3.  The applicant’s wartime commander reportedly was furious about the results and asked the applicant if he wanted to apply for correction.  At the time, the applicant responded that he was happy to have received an award after so many years after the event.  In retrospect he believes he earned his wartime commander’s recommendation for the Silver Star.

4.  The applicant then applied to the ABCMR, in March 2000, to have the Bronze Star Medal, with “V” Device, upgraded to the Silver Star, as originally had been recommended.  The application was returned to him after it was administratively closed because the applicant hadn’t exhausted all administrative remedies which were available to him.  He was advised he could exercise his rights under Title 10, US Code, Section 1130.  It appears his wartime commander did use this method when he recommended the applicant for the Silver Star and so, there is no evidence the applicant availed himself of these procedures once again.

5.  The applicant reapplied to the ABCMR in June 2006 to have the Bronze Star Medal, with “V” Device, upgraded to the Silver Star.  Although the Board which considered the applicant’s request denied his request to upgrade his Bronze Star Medal, with “V” Device, to a Silver Star, based upon the Statute of Limitations, the evidence was fully considered in that case.

6.  The applicant again applied to the ABCMR in April 2007 to have the Bronze Star Medal, with “V” Device, upgraded to the Silver Star.  After having reviewed all the evidence in the case, this request was administratively closed and returned to the applicant since he had not submitted any new evidence that was not considered by the Board during its prior consideration of his case.



7.  To be awarded the Silver Star, a person must be cited for gallantry in action against an enemy.  The required gallantry must have been performed with marked distinction.  The Awards Regulation defines Gallantry as “spirited and conspicuous acts of heroism and courage.”  The applicant’s acts were heroic and courageous; however, in the recommendation submitted by the applicant’s wartime commander, he described the applicant as having volunteered to leave the safety of his covered position and then having crawled through open fire-swept terrain to retrieve the body of a fallen comrade.  The applicant’s witness to the action stated that during the firefight, he saw the applicant creep over the field and recover the noncommissioned officer who had been killed in the action.  While the applicant’s actions in the face of the enemy were heroic and courageous, they do not appear to have risen to the level of “spirited and conspicuous.”  

8.  The demonstrated actions of the applicant on 8 August 1952 appear to have been more in keeping with the definition in the Awards Regulation of the courage required to qualify for award of the Bronze Star Medal, with “V” Device, - extreme courage demonstrated in attaining a noble end – the recovery of the body of a fallen comrade.

9.  While the applicant may never be convinced that the colonels who sat on the Awards Board and deliberated over the recommendation made for award of the Silver Star to him were in a position to evaluate the merits of his acts on 8 August 1952 because they were at the time probably assigned to staff jobs, it appears the decision they made was a correct one.  Based upon the above evidence, the applicant is not entitled to an upgrade of the Bronze Star Medal, with “V” Device, to the Silver Star.

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 to amend the decision of the ABCMR set forth in Docket Number AR20060011939 dated 22 March 2007.




       _    __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)                                         AR20080008825





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080008825



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1