IN THE CASE OF:	  

		BOARD DATE:	       12 August 2008

		DOCKET NUMBER:  AR20080010584 


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 he be awarded the Silver Star and the Bronze Star Medal with "V" Device.

2.  The applicant states, in effect, that his record is incomplete and does not reflect that he was "written up" for award of the Silver Star for entering a minefield to rescue a fellow Soldier and the Bronze Star with "V" Device for leading an patrol safely out of a ambush situation. 

3.  The applicant provides copies of his DD Form 214 (Report of Separation From the Armed Forces of the United States), two statements from fellow Soldiers having personal knowledge of the actions, a 3 July 2003 newspaper article about the applicant, eight pages from a book about the 3rd Infantry Division's actions in Korea, a magazine article written by the applicant, an excerpt from the 2 October 2001 issue of the magazine Watch on the Rhine, and several personal statements from the applicant describing his actions. 

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's military records were partially lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from the documents provided by the applicant.  The only official document available is DD Form 214 provided by the applicant.

3.  The DD Form 214 shows the following:

	a.  the applicant was inducted on 28 November 1951;

	b.  his official military occupational specialty (MOS) is listed as 4405, clerk typist; 

	c.  he was released from active duty and transferred to the Army Reserve (USAR) Control Group (Reinforcement) on 27 August 1953; having served honorably for 1 year and 9 months; and

	d.  his authorized awards are the Korean Service Medal and the United Nations Service Medal with 2 bronze service stars.

4.  The applicant’s personal statements indicate that he was responsible for leading the remnants of his patrol to safety on 18 September 1952 during a Chinese attack at Outpost Hill Kelly.  He states that he signed the paperwork for a Bronze Star Medal completed by Captain D____.  

5.  He also describes his actions of 27 October 1952 when his unit was positioned in front of a location called Jackson Heights on Iron Horse Mountain.  He states that he heard moaning coming from the minefield and saw a Soldier lying in the minefield.  He and another Soldier went out and retrieved the wounded Soldier.  He indicates he was told he would be recommended for the Silver Star for this action.

6.  In a 10 October 2007 statement, J____ W____ describes the applicant's actions on 18 September 1952 when the applicant led the patrol out of an ambush situation and safely back to Allied lines.  He states he was aware that Captain D____ had recommended the applicant for the Bronze Star.  He also states that he was present when the applicant and Corporal H____ D____ 
extracted a wounded Soldier from a minefield on 28 October 1952.  He states the applicant was recommended for the Silver Star and Corporal D____ was recommended for the Bronze Star Medal for their actions. 

7.  In a 4 May 2008 statement, W____ I_____, states that he and the applicant were friends serving in the same location and was aware of the applicant's activities at both Outpost Hill Kelly and Jackson Heights.  He states he can vouch for those actions in support of the applicant's request.

8.  The eight page excerpt from a book does not list the applicant by name nor does it describe the incidents as related by the applicant.

9.  The 3 July 2003 newspaper article about the applicant, describes almost verbatim the applicant's recounting of two incidents he describes in his personal statements. 

10.  The 2 October 2001 Watch on the Rhine article, which was written by the applicant, again describes his units and his personal actions of 28 October 1952.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records [ABCMR]), paragraph 2-9 states that "The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence."

12.  Army Regulation 600-8-22 (Military Awards) Army Regulation (AR) 600-8-22 sets forth the basic authority, policy, criteria and administrative instructions concerning individual military awards and decorations.  In pertinent part it states:

	a.  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;  

	b.  that the Bronze Star Medal is awarded in the time of war for heroism and for meritorious achievement or service; and 

	c.  as with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  There are regulatory provisions for lost recommendations but not for late recommendations or reconsideration.


13.  Section 1130, Title 10, United States Code provides that the Service concerned will review a proposal for the award of, or upgrading of, a decoration that would not otherwise be authorized to be awarded based upon time limitations previously established by law.  Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates and related documents.  Corroborating evidence is best provided by commanders, leaders and fellow comrades who had personal knowledge of the circumstances and events relative to the request.  A request for award not previously submitted in a timely fashion will only be considered under this provision if the request has been referred to the Service Secretary from a Member of Congress.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rests with the requester.

DISCUSSION AND CONCLUSIONS:

1.  Without the applicant's service records it is impossible to determine whether he was officially recommended for award of the Silver Star or the Bronze Star Medal with "V" Device or whether the awards were approved or denied. 

2.  The regularity provision for lost recommendations require that there must be evidence that a recommendation was entered into the chain of command and that it was lost or otherwise not acted upon.  This, necessarily, requires evidence to preclude the possibility that a recommendation was submitted and disapproved.

3.  While the available evidence is insufficient for awarding the applicant the Silver Star or the Bronze Star Medal with "V" Device, this in no way affects the applicant’s right to pursue his claim for these awards by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.









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)                                         AR20080010584



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080010584



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1