IN THE CASE OF:	  

		BOARD DATE:	        22 JANUARY 2009

		DOCKET NUMBER:  AR20080012951 


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 Bronze Star Medal.

2.  The applicant states that he may have already been awarded the Bronze Star Medal; however, he was in possession of his Official Personnel Record Jacket for the last 6 weeks of his enlistment, while he was in transit.

3.  The applicant provides in support of his application, an undated statement explaining the events that he contends warrants his being awarded the Bronze Star Medal; an inquiry addressed to the former Director, Army Board for Correction of Military Records, dated 3 July 2008; a letter addressed to the applicant from the Army Review Boards Agency, Chief, Congressional and Special Actions, dated 9 July 2008; a Member of Congress Privacy Release Form, dated 31 August 2006; a copy of his Honorable Discharge Certificate; a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States); a copy of a letter addressed to him from his Member of Congress, dated 1 September 2006; a copy of a letter address to the Director, National Personnel Records Center, from his Member of Congress, dated 1 September 2006; a copy of a letter addressed to the applicant from his Member of Congress, dated 18 September 2006; a copy of a letter addressed to his Member of Congress from the Director, National Personnel Records Center, dated
18 September 2006; and one page of his Record of Service.

4.  The applicant also provides a copy of his Standard Form (SF) 180 (Request Pertaining to Military Records), dated 4 December 2006 and the response that he received from the National Personnel Records Center; a copy of his SF 180, dated 30 April 2007 and the response that he received from the National Personnel Records Center; a copy of his DD Form 149 (Application for Correction of Military Records Under the Provisions of Title 10, U.S. Code, section 1552), dated 28 March 2007 and the response that he received; an undated letter addressed to "Gentlemen" pertaining to correspondence that he received through mail from the National Personnel Records Center, which was intended for another individual; a copy of a letter addressed to "Military Personnel Records," dated 3 January 2007, returning the misdirected correspondence; a copy of a letter from the applicant addressed to the intended recipient of the misdirected correspondence, dated 3 January 2007; and a copy of an undated letter addressed to the applicant from the intended recipient of the misdirected correspondence.

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 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 submitted by the applicant for the Board to conduct a fair and impartial review of this case.

3.  On 26 February 1951, the applicant enlisted in the Regular Army in Syracuse, New York, for 3 years, in the pay grade of E-1.  He was honorably discharged on 24 February 1954, under the provisions of Army Regulation 615-365 at the convenience of the Government.  He completed 2 years, 11 months, and 29 days of creditable active service.

4.  The DD Form 214 that the applicant was furnished at the time of his discharge shows that he was awarded the Korean Service Medal with one bronze service star, the National Defense Service Medal, and the United Nations Service Medal. 
5.  The applicant submitted one page from his Record of Service which shows that he was awarded the Korean Service Medal with one bronze service star, the National Defense Service Medal, the United Nations Service Medal, and one Overseas Service Bar while he was in the Army.

6.  In the undated statement that the applicant submitted in support of his appeal, he states that a replacement private was assigned to him after being released from the stockade.  He states that the private was a "Bad Guy" who was holding a knife after a fight started between the private and a sergeant.  He states that the sergeant sustained a knife wound to his forehead and took a gun from someone and aimed it at the private.  He states that the two individuals were approximately four feet apart when he "hollered" for the two individuals to drop everything.  He states, in effect, that he disarmed the sergeant who was holding the gun and he called for a medic to attended to the sergeant's wounds.  He states that he told a staff sergeant to hold a rifle on the private and to shoot him if he did anything stupid.  

7.  In the undated statement, the applicant contends that eventually, a military policeman arrived and arrested the private who was subsequently court-martialed and sent to jail.  He states that sometime later, he was told that he should receive something for the action that he took at that time.  He states that he requested to be awarded the Soldier's Medal; however, he was later offered a Bronze Star Medal for meritorious service.  He states that he agreed to accept the Bronze Star Medal if the Good Conduct Medal was included.  He states that he was at the end of his enlistment and he was told not to worry as his awards would "catch up" to him later.

8.  A review of the available documentation does not reveal any orders awarding the applicant the Bronze Star Medal.

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  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.  

10.  Title 10, U.S. Code, section 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 be awarded the Bronze Star Medal.

2.  The documentation submitted by the applicant was considered along with his contentions.  However, the available evidence does not substantiate that he is entitled to award of the Bronze Star Medal.

3.  In accordance with the applicable regulation, formal recommendations, approval through the chain of command, and announcement in orders are required for award of the Bronze Star Medal.  There are no orders available to show that he was awarded the Bronze Star Medal and the documentation that he submitted is insufficient to warrant granting his request.

4.  While the available evidence is insufficient for awarding the applicant a Bronze Star Medal, this in no way affects the applicant’s right to pursue his claim for the Bronze Star Medal by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

4.  In order to justify correction of a military record the applicant must show 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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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.



      _________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)                                         AR20080012951



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080012951



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1