IN THE CASE OF:	   

		BOARD DATE:	        28 October 2008

		DOCKET NUMBER:  AR20080009645 


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 award of the Silver Star be upgraded to award of the Distinguished Service Cross.

2.  The applicant states, in effect, that during WWII black Soldiers were discriminated against and that it was an Army decision to prohibit award of any medal above the Silver Star to black Soldiers.

3.  The applicant provides a copy of the materials he presented to his Congressman 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.  There are extensive military personnel service records available for review with this case.  It does not appear that the applicant's records were affected by the 1973 fire at the Personnel Records Center in St. Louis, Missouri.

3.  Records show that, on 23 October 1940, the applicant enlisted for a period of three years.  Records further show that the applicant served honorably until his retirement on 1 June 1963.

4.  The applicant was assigned to Company G, 25th Infantry Division upon entering active duty and was transferred to the 429th Medical Ambulance Battalion, 590th Ambulance Company on 4 March 1943.

5.  On 27 February 1944, the applicant was transferred to the European Theater of Operations where he performed the duties of platoon leader, supply noncommissioned officer, administrative noncommissioned officer, and a medium tank crewman.

6.  Records also show that he served in combat on 21 July 1944 and that on
17 February 1945 he was transferred from the 590th Ambulance Company to Company C, 761st Tank Battalion, Armored.  His combat duties concluded on or about 8 May 1945 and he was transferred to the 163rd Chemical Company on 25 August 1945.  

7.  Records show that he was awarded the Purple Heart, Presidential Unit Citation, Silver Star, Chevalier of the French Legion of Honor, Army Commendation Medal, European-African-Middle Eastern Campaign Medal with one silver service star, American Defense Medal, WWII Victory Medal, Good Conduct Medal, and the Bronze Star Medal with "V" Device.

8.  Records show the following citation for award of the Bronze Star Medal with "V":  "For heroic achievement in action.  During the period 15 to 23 March 1945, in our advances from ***, France to ***, Germany, [applicant's name removed], tank gunner, displayed outstanding devotion to duty in closely supporting ******* attacking elements of the 411th Infantry.  Although wounded in the hand and leg early in the attack, he refused to be evacuated.  Continuing the attack, he assisted in destroying or neutralizing 23 pillboxes and evacuated casualties in the face of enemy artillery, mortar, and small arms fire.  [Applicant's name removed] materially assisted in the clearing of automatic weapon and sniper positions and effectively covered engineer operations.  [Applicant's name removed] actions reflected the highest traditions of the military service."


9.  During the applicant's period of service with the 761st Tank Battalion, the Battalion was awarded the Presidential Unit Citation.  The citation for the Presidential Unit Citation states in summary that the 761st Tank Battalion distinguished itself by extraordinary gallantry, courage , professionalism, and high esprit de corps displayed in the accomplishment of unusually difficult and hazardous operations in the European Theater of Operations during the period 31 October 1944 through 6 May 1945.

10.  Department of the Army Permanent Orders Number 022-12, dated 22 January 1997, announced that the applicant was awarded the Silver Star for gallantry in action against an armed enemy during the period 15 March 1945 through 23 March 1945.  There is no citation or other pertinent document in the available records which show the specific action for which the Silver Star was awarded.

11.  Records show that the applicant was presented the Chevalier of the Legion of Honor by the French Government in acknowledgement of his personal, precious contribution to the Unites States' decisive role in the liberation of France during World War II.

12.  Records further show that the applicant applied to the Army Decorations Board for upgrade of his previously awarded Silver Star to the Distinguished Service Cross.  The Army Decorations Board determined that based on the available evidence, the Silver Star was the appropriate award for his actions.

13.  Army Regulation 600-45 (Personnel) was the military awards regulation in effect at the time of the applicant’s service.  Section II of this regulation required that awards of the Bronze Star Medal and the Silver Star were to be approved, during periods of war, by "the commander of any separate force outside of the limits of the continental United States when the commander is a major general or officer of a higher grade; and this authority may be delegated to subordinate commanders not below the grade of major general."

14.  Paragraph 12 of Army Regulation 600-45 governed award of the Distinguished Service Cross at the time in question.  The regulation states that the Distinguished Service Cross is 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 states 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."

15.  Public Law 86-582, which was enacted on 5 July 1960, authorized the consideration of award recommendations which were submitted into military channels and through inadvertence were not acted upon within the prescribed time limitations. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his previously-awarded Silver Star should be upgraded to the Distinguished Service Cross because African American Soldiers were not awarded the Distinguished Service Cross based on race was carefully considered and determined to be without merit.

2.  The applicant's records clearly show that he is a highly decorated war veteran who sacrificed much for his country.  It is noted that the applicant served proudly during a period of racial strife in this country and his argument of discrimination was carefully considered during the review of this application.  However, there is insufficient evidence in the available records and the applicant has not provided sufficient evidence showing that the failure to receive the Distinguished Service Cross was based on his race.

3.  Due to the fact that the records do not contain documentation which shows the specific action for which the Silver Star was awarded, it cannot be determined if his actions rose to the level for award of the Distinguished Service Cross   prescribed by regulation.  Specifically the regulation states that "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."

4.  The Army Decorations Board thoroughly reviewed the applicant's records and determined that the Silver Star was the appropriate award for his heroic actions.  

5. Absent substantial evidence to the contrary, the award of the Silver Star is the appropriate award in this case and there is no basis to grant the relief requested.

6.  Although, there is insufficient evidence to grant the relief requested, this by no means diminishes the applicant's dedicated service to and sacrifices for a grateful nation.







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)                                         AR20080009645



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ABCMR Record of Proceedings (cont)                                         AR20080009645



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