IN THE CASE OF:	  

		BOARD DATE:	        12 August 2008

		DOCKET NUMBER:  AR20080009469 


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 Silver Star, correction of his military occupational specialty (MOS) to an infantry MOS, and award of the Combat Infantryman Badge (CIB).

2.  The applicant states that he was denied the Silver Star Medal for an act of valor during combat operations on the Island of Luzon in the Philippines and that the only explanation he was given by his company commander was that his squad disobeyed orders.  He also adds that he recently applied to have his MOS changed to infantry to qualify for award of the CIB.  

3.  The applicant provides an undated self-authored letter, describing the events of 2 February 1945, in support of his application

CONSIDERATION OF EVIDENCE:

1.  The applicant requests correction of his MOS to an infantry MOS, award of the CIB, and award of the Silver Star.  His request for award of the Silver Star is a new issue.  However, he had previously submitted an application on 4 December 2007 requesting that his MOS be changed to an infantry MOS and that he be awarded the CIB (AR20080001308).  The ABCMR rendered a decision in that matter on 3 June 2008 denying the applicant's request.  His current application, dated 29 April 2008, was submitted prior to the Board's decision of the first application.  Therefore, the 3 June 2008 Board action serves as the Board's response to the applicant's request for an MOS change and award of the CIB.  The applicant has been notified by separate correspondence that the 3 June 2008 Board action is deemed to serve as the Board's response to his request for an MOS change and award of the CIB; therefore, that portion of his current request pertaining to the MOS change and the CIB will not be discussed further in this Record of Proceedings.

2.  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.

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 (Enlisted Record and Report of Separation) shows he was into the Army of the United States on 19 April 1943 and entered active duty on 26 April 1943.  He was trained in military occupational specialty (MOS) 059 (Construction Foreman) and was assigned to Troop A, 8th Engineer Squadron, 1st Cavalry Division.

5.  The applicant's WD AGO Form 53-55 further shows he served in the Asiatic-Pacific Theater during the period 12 February 1944 through 7 December 1945.  He completed 9 months and 10 days of continental service and 1 year, 10 months, and 11 days of foreign service, and was honorably separated on 16 December 1945.

6.  Item 32 (Battles and Campaigns) shows that the applicant participated in the New Guinea, Bismarck Archipelago, the Southern Philippines, and the Luzon campaigns of World War II (WWII).




7.  Item 33 (Decorations and Citations) of the applicant's WD AGO Form 53-55 shows the applicant was awarded the Good Conduct Medal, the Philippine Liberation Ribbon with two bronze service stars, the Asiatic-Pacific Campaign Medal with four bronze service stars and one bronze arrowhead, and the World War II Victory Medal.  Item 33 does not show award of the Silver Star.

8.  The applicant's records do not contain General Orders awarding him the Silver Star.

9.  In his undated, self-authored statement, the applicant states that:

	a.  he was a member of the 1st Squad, 1st Platoon, Troop A, 8th Engineer Squadron, 1st Cavalry Division.  On 2 February 1945, the unit was on the Island of Luzon fighting near the village of Novaliches, on its way toward Manila.  The unit was split into squads and was attached to the 12th Cavalry Regiment.  On that day, the squad filed to the inside curve of a dirt road where the Japanese were suspected of setting up a machinegun ambush.  Upon approaching a bend in the road, the squad was engaged by an enemy machinegun;

	b.  the applicant's sergeant ordered him (the applicant) to go back down the road and obtain a bazooka and as many rounds as possible.  He hopped out of the ditch and ran back on the road, under intense enemy fire, and relayed to his commanding officer what the sergeant instructed him to do; but the commanding officer refused to give him the bazooka.  He went back up the road, under enemy fire, and informed the sergeant of the commander's decision; however, the sergeant told him that the squad had knocked out the machinegun while he was gone; and

	c.  he did not know until July 1945 that someone recommended him for award of the Silver Star for drawing enemy machinegun fire on that day and that the commanding officer of the unit he was attached to, denied the recommendation.

10.  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.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

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 award of the Silver Star. 

2.  The decision of whether to award an individual a decoration and which decoration to award is a judgment call made by the commander having award approval authority.  It is unclear if the applicant's commander at the time of the act, or shortly thereafter, determined that the applicant's actions were so extraordinary and so noteworthy as to warrant award of the Silver Star or any particular award.  Almost sixty three years have passed since the events described by the applicant and the ABCMR is not privy to the decision process used at that time.

3.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required, for award of the Silver Star.  The applicant's record is void of a recommendation for award of the Silver Star; there are no general orders that show the applicant was awarded the Silver Star; and the applicant did not provide corroborating evidence that he distinguished himself for gallantry, spirited and conspicuous acts of heroism and courage performed with marked distinction, in action against the enemy.

4.  While the available evidence is insufficient for awarding the applicant the Silver Star, this in no way affects the applicant’s right to pursue his claim for this award 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

__xxx___  __xxx___  __xxx___  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.



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      _______ _   _______   ___
               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)                                         AR20080009469



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ABCMR Record of Proceedings (cont)                                         AR20080009469



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