IN THE CASE OF:	  

		BOARD DATE:	        13 NOVEMBER 2008

		DOCKET NUMBER:  AR20080011379 


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 the award of the Silver Star awarded to her deceased husband, a former service member (FSM), be reviewed for upgrade to a higher award and in effect show any other awards he deserves.

2.  The applicant states, in effect, that her husband's award of the Silver Star should be reviewed for consideration of upgrading it to a higher award as has been done for other members of the 442nd Regimental Combat Team, which resulted in the upgrading of many citations for valor.  

3.  The applicant provides a copy of the FSM's report of separation (WD AGO Form 53-55), a copy of General Order Number 14 awarding the FSM the Silver Star for gallantry in action on 19 April 1945, a copy of a letter to a congressional representative from the Oregon Nisei Veterans, Inc, a booklet memorializing the FSM's life, a copy of the applicant's and the FSM's marriage license, a third party letter forwarding the application and a letter from the applicant authorizing the Board to review the FSM's records.

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 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, the documents provided by the applicant is sufficient evidence for the Board to conduct a fair and impartial review of this case.

3.  The FSM was born in Troutdale, Oregon on 20 May 1925 and was residing in Gresham, Oregon when he and his family were relocated to a relocation camp following the attack on Pearl Harbor.  He was in Nyssa, Oregon when he was inducted on 27 April 1944.  He completed his basic training at Fort Douglas, Utah and volunteered for assignment to the 442nd Regimental Combat Team (RCT), a Japanese-American (Nisei) Infantry Regiment.  (Nisei are people, or a person, of Japanese ancestry and are the first generation to be born abroad).  He was transferred to Camp Shelby, Mississippi for additional training and on 6 January 1945, he departed from Hampton Roads, Virginia for the European Theater of Operations (ETO).  He arrived in the ETO on 17 January 1945 and was assigned to Company L, 3rd Battalion, 442nd Regimental Combat Team for duty as a rifleman. 

4.  On 21 March 1945, the FSM and his unit were deployed back to Italy as part of the 92nd Infantry Division, which included the all-African-American 370th and the all-white 473rd Infantry.  Mounting a diversionary attack in the Appenine Mountains, the 442nd took their assigned objectives cracking the German defensive line.  By 2 May 1945, the war was over in Italy.  Victory in Europe (VE) Day was 8 May 1945.

5.  On 16 January 1946, General Orders Number 14, issued by Headquarters, Mediterranean Theatre of Operations awarded the FSM the Silver Star for gallantry in action in Italy on 19 April 1945.  Six other Soldiers assigned to the 442nd RCT were also awarded the Silver Star on the same order.

6.  The FSM was advanced to the rank of technical sergeant, participated in the Northern Appenines, PO Valley and Rhineland Campaigns and remained in Europe until he departed the ETO on 22 June 1946.  He arrived in the United States on 2 July 1946 and was transferred to Fort Belvoir, Virginia.  However, he was subsequently transferred to the Fitzsimmons General Hospital in Denver, Colorado where he remained until he was honorably discharged at Lowry Field, Denver, Colorado on 25 January 1947.  He had served 2 years, 8 months and 29 days of total active service and his report of separation reflects that he was awarded the Combat Infantryman Badge (CIB), the World War II Victory Medal, the European-African-Middle Eastern (EAME) Campaign Medal with two bronze service stars, the Good Conduct Medal, the Silver Star and the Distinguished Unit Badge (Now known as the Presidential Unit Citation). 

7.  The 442nd Regimental Combat Team of the United States Army was an Asia-American unit composed of mostly Japanese Americans who fought in Europe during WWII.  The families of many of its Soldiers were subject to internment.  The 442nd was a self-sufficient fighting force and fought with uncommon distinction in Italy, southern France and Germany.  The unit became the most highly decorated military unit in the history of the United States Armed Forces, including 1 Medal of Honor recipient, 52 Distinguished Service Crosses, 560 Silver Stars and 28 oak leaf clusters to the Silver Star, 4,000 Bronze Star Medals and 1,200 oak leaf clusters to the Bronze Star Medal (BSM), and 9,486 Purple Hearts.  However, following a review of the records of Asian Pacific American veterans that was authorized by the 1996 Defense Authorization Act to ensure that wartime conditions had not led to such bravery being inadequately recognized, and following recommendations from a review of Distinguished Service Cross (DSC) recipients by the Secretary of the Army in the year 2000, the President approved the award of the Medal of Honor for 19 members of the 442nd RCT who had previously received the DSC.  The Medals of Honor were presented by the President on 21 June 2000.  A Senator from Hawaii introduced the bill that caused the review to be considered, notwithstanding statutory time restrictions for considering such awards. 

8.  The governing law and regulations place time limitations on submission of award recommendations.  However, Title 10, United States Code, section 1130 (10 USC 1130) allows the Service Secretary concerned to review a proposal for award of, or upgrading of, a decoration that is otherwise precluded from consideration by limitations established by law or policy.  In order to request an award under 10 USA 1130, individuals must submit a Department of the Army (DA) Form 638 (Recommendation for Award) and should be supported by sworn affidavits, eyewitness statements, certificates and related documents relative to the request.

9.  10 USC 1130 also requires that a request of this nature be referred to the Service Secretary from a Member of Congress,  Therefore, individuals must submit their request through a Member of Congress to the Secretary of the Army at the following agency: United States Army Human Resources Command, Personnel Support Division, 200 Stovall Street, Room 3S67, Alexandria, Virginia 22332-0405.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rests with the requestor.

10.  Paragraph 9 of Army Regulation 600-45 (Decorations), dated 22 September 1943 with changes states that the “Medal of Honor is awarded, in the name of Congress, to each person who, while an officer, noncommissioned officer, or private of the Army, in action involving actual conflict with an enemy, distinguishes himself conspicuously by gallantry and intrepidity at the risk of his life above and beyond the call of duty.

11.  Paragraph 9b of Army Regulation 600-45 (Decorations) states the standards for award of the Medal of Honor which are:  In order to justify an award of the Medal of Honor, the individual must perform in action a deed of personal bravery or self-sacrifice above and beyond the call of duty, so conspicuous as to clearly distinguish him for gallantry and intrepidity above his comrades involving risk of life or the performance of more than ordinarily hazardous service, the omission of which would not justly subject the person to censure for shortcoming or failure in the performance of his duty.  The recommendations for the decoration will be judged by this standard of extraordinary merit and incontestable proof of the performance of the service will be extracted.

12.  Paragraph 12 of Army Regulation 600-45 (Decorations) 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.

13.  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.

14.  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.  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.

15.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Army of Occupation Medal is awarded for service of thirty consecutive days at a normal post of duty in a qualifying location.  Personnel at a qualifying location as an inspector, courier, and escort on temporary or detached duty are precluded from eligibility.  For award of the Army of Occupation Medal with Germany Clasp, qualifying service must have occurred between 9 May 1945 and 5 May 1955 and the European-African-Middle Eastern Campaign Medal must have been awarded prior to 9 May 1945.

16.  Army Regulation 600-8-22 provides, in pertinent part, for award of the American Campaign Medal.  This campaign medal is awarded for qualifying service in the American Theater between 7 December 1941 and 2 March 1946.  Qualifying service for this campaign medal includes permanent assignment outside the continental United States but within the American Theater of Operations, or duty as a crewmember aboard a vessel sailing ocean waters for 30 consecutive or 60 nonconsecutive days, or duty outside the continental United States as a passenger or in a temporary duty status for 30 consecutive or 60 nonconsecutive days, or active combat against the enemy and was awarded a combat decoration or furnished a certificate by a corps commander or higher, or service within the continental United States for an aggregate period of one year.

17.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides 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.

DISCUSSION AND CONCLUSIONS:

1.  While the FSM's heroism and gallantry in combat is not in question, 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.  

2.  The applicant has not shown why she believes that the FSM was deserving of a higher award or provided any evidence to show that he was recommended for a higher award and was unjustly denied the recognition he deserved.  Accordingly, there appears to be no basis to grant the applicant's request to upgrade the FSM's award of the Silver Star.

3.  However, this in no way affects the applicant’s right to pursue her claim for an upgrade of the FSM's award by submitting a request through her Member of Congress under the provisions of 10 USC 1130, as was accomplished in the last review of the 442nd RCT.  

4.  Additionally, it is also noted that based on the FSM's award of the CIB, he is entitled to be awarded the BSM for meritorious service during WWII.

5.  It is further noted that the FSM is also entitled to be awarded the American Campaign Medal, the Army of Occupation Medal (AOM) with Germany Clasp and three bronze service stars for wear on his EAME Campaign Medal instead of the two bronze service stars reflected on his report of separation.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding him the BSM for meritorious service during WWII, the American Campaign Medal, the AOM with Germany Clasp and three bronze service stars for wear on his EAME Campaign Medal, vice the two that are reflected on his report of separation. 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the award of the Silver Star.  
3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the FSM in service to the United States during WWII.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _ XXX  _______   ___
               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)                                         AR20080011379





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ABCMR Record of Proceedings (cont)                                         AR20080011379



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