IN THE CASE OF:	  

		BOARD DATE:	  18 February 2009

		DOCKET NUMBER:  AR20080009604 


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 the record of her late father, a former service member (FSM), be reviewed to confirm he was a Silver Star (SS) recipient and confirm his eligibility for the Bronze Star Medal (BSM). 

2.  The applicant states, in effect, that the FSM was a SS recipient; however, Department of Veterans Affairs (VA) records fail to show this and only show that he was awarded the BSM.  As a result, he was provided a “Bronze Star” grave marker at burial in 17 May 2008.  She indicates that the FSM was never awarded the BSM and questions the validity of the VA records.  She further states that she strongly feels that the FSM suffered all of his life from war injuries without complaint and that he should be justly honored for his service for us all with the appropriate grave marker.

3.  The applicant provides the following documents in support of her request:  Self-Authored Statement; Power of Attorney; two Certificates of Birth; Pennsylvania Driver’s License; VA Form 40-1330 (Application for Standard Government Headstone or Marker); WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge); Certificate of Death; Headquarters, Regimental Combat Team 108 Letter, dated 1 November 1945; SS Citation and General Orders; WD AGO Form 100 (Separation Qualification Record); and VA FL 8-38 (Award of Disability Compensation or Pension).  

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 FSM’s military records were not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  This case is being considered using the evidentiary documents submitted by the applicant which include the FSM’S separation document.

3.  The FSM’s WD AGO Form 53-55 shows he was inducted into the Army of the United States on 7 October 1942 and entered active duty on 21 October 1942.  It also shows he held and served in military occupational specialty (MOS) 745 (Rifleman), and that he served in the Asiatic-Pacific Theater of Operations (APTO) from 16 November 1942 to 20 April 1945.  Item 31 (Military Qualification and Date) shows he earned the Expert Infantryman Badge (EIB) and the Combat Infantryman Badge (CIB), and Item 32 (Battles and Campaigns) shows he participated in the Southern Philippines and Luzon [Philippines] campaigns. 

4.  Item 33 (Decorations and Awards) of the FSM's WD AGO Form 53-55 shows he earned the Purple Heart (PH), Army Good Conduct Medal (AGCM), Asiatic-Pacific Campaign Medal (APCM), Philippine Liberation Ribbon with 2 bronze service stars, American Campaign Medal (ACM), and the World War II (WWII) Victory Medal.

5.  The FSM's WD AGO Form 53-55 also shows he was honorably discharged with a Certificate of Disability Discharge on 17 March 1947, having completed
4 years, 5 months, and 11 days of active military service.

6.  The applicant provides two birth certificates and a Certificate of Death, which confirms that she is the FSM’s daughter.  She also provides a VA Form 40-1330, which shows the FSM was a PH recipient.  

7.  The applicant provides Headquarters, 40th Infantry Division, General Orders Number 192, dated 10 October 1945, which awarded the FSM the SS for gallantry in action in Luzon on 27 January 1945.  She also provides the accompanying SS citation which outlines the details and circumstances surrounding this award.

8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Bronze Star Medal is awarded for heroism and for meritorious achievement or service in military operations against an armed enemy.  Paragraph
3-14d (2) of the awards regulation states, in effect, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the FSM's records should be corrected to show he was a SS recipient and to confirm his eligibility for the BSM was carefully considered and found to have merit.  The evidence includes orders and accompanying documents that confirm the FSM was awarded the SS for gallantry in action in Luzon on 27 January 1945.  As a result, it would be appropriate to add this award to the list of awards contained on his WD AGO Form 53-55.

2.  By regulation, members who earned the CIB during World War II are authorized the BSM.  The evidence confirms that the FSM received the CIB while serving in the APTO during World War II.  As a result, he is eligible for the BSM for his exemplary conduct in ground combat against an armed enemy while serving in the APTO between 16 November 1942 and 20 April 1945.  Therefore, it would be appropriate to award him the BSM and to add it to his record and separation document at this time.  

3.  The applicant is advised that the issue of grave markers is not within the purview of the Board.  However, once the recommended records corrections have been made and a correction to the FSM's WD AGO Form 53-55 issued, the applicant should provide a copy of the correction document that includes the SS in the list of earned awards in Item 33, which should allow the VA to make appropriate corrections to its records.


BOARD VOTE:

____x___  ___x____  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  awarding the FSM the Bronze Star Medal based on award of the Combat Infantryman Badge, for exemplary conduct in ground combat against an armed enemy while serving in the APTO between 16 November 1942 and 20 April 1945;

   b.  adding to Item 33 of the FSM's WD AGO 53-55 the Silver Star for gallantry in action in Luzon on 27 January 1945 and the Bronze Star Medal; and
   
   c.  issuing a correction to the FSM's separation document that reflects these awards.



      _________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)                                         AR20080009604



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ABCMR Record of Proceedings (cont)                                         AR20080009604



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