IN THE CASE OF:	

		BOARD DATE:	  22 January 2009

		DOCKET NUMBER:  AR20080013867 


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 promotion to the rank of second lieutenant (in effect, a battlefield commission), award of the Silver Star, and award of the Bronze Star Medal.

2.  The applicant states he should have received the promotion based on his being the only man left alive in his platoon.  He also states that because he was the only man left alive there was no one left to recommend him for the award of the Silver Star and the Bronze Star Medal.

3.  The applicant provides, in support of his application, copies of an unreadable set of orders; a letter from the National Personnel Records Center, dated 14 March 2003; his letter to the U.S. Army Soldier and Biological Chemical Command, dated 27 March 2003; his previous application for correction of his military records, dated 12 January 2004; a letter from the Army Review Boards Agency, dated 24 December 2003; and four pages of Congressional correspondence, dated between 16 July and 3 September 2008.

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 complete 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 much of the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The available records show the applicant was initially inducted into the Army of the United States and entered active duty on 21 November 1944.  He was honorably discharged on 28 August 1946 after completing 1 year, 9 months, and 8 days of creditable active service.  He then enlisted in the Regular Army on 14 July 1948 and reenlisted on 10 June 1949.

4.  In his statement, dated 12 January 2004, submitted with his previous application, the applicant states he was transferred in July 1950 to the 34th Infantry Regiment, 24th Infantry Division, in Korea.  He also states that on 20 July 1950, his platoon was trying to get out of Taejon when they came under heavy attack.  He states all of his platoon were killed, that his commanding officers were killed, and there was no one left to recommend him to receive his Silver Star, Bronze Star Medal, or his commission to second lieutenant.  He states that if no one else is remaining in a platoon you may assume the role of commanding officer and recommend for yourself any deserving medals and or commissions.

5.  On 20 July 1950, the applicant was captured and he was repatriated on 23 August 1953.

6.  On 16 October 1953, the applicant was discharged with a total of 8 years, 10 months, and 26 days of active service that was characterized as honorable.

7.  Item 3 (Grade-Rate-Rank and Date) of his DD Form 214 (Report of Separation from the Armed Forces of the United States) with an effective date of 16 October 1953 contains the entry "CPL (T) 19 Aug 50" (corporal [temporary] 19 August 1950).

8.  Item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not contain entries for the awards of the Silver Star or the Bronze Star Medal.
9.  There are no orders in the applicant's available records for appointment to second lieutenant, award of the Silver Star, or the Bronze Star Medal.

10.  According to a history of the 34th Infantry taken from the Internet, elements of the 34th Infantry, remnants of the division’s artillery battalions, the division reconnaissance company, the engineer battalion, and part of the 19th Infantry tried to defend Taejon, but they were overwhelmed and forced to withdraw through enemy fire.  It was a rout.  Company L, 34th Infantry, which remained in the city as a rear guard, lost 107 out of 153 men.

11.  Army Regulation 140-105 (Appointment of Officers), in effect at the time, provided a basis for the systematic procurement of officers for the Organized Reserve Corps and established the requirement common to the various officer procurement programs.  One of the eligibility criteria was to have been recommended by a board.

12.  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.

13.  Army Regulation 600-8-22 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.

14.  Title 10 of the U.S. Code, section 1130 (10 USC 1130), provides the legal authority for consideration of proposals for decorations not previously submitted in a 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 he should be promoted to second lieutenant based on his being the only man left alive in his platoon.  He also contends he should be awarded the Silver Star and the Bronze Star Medal.

2.  Evidence does show that elements of the 34th Infantry were overwhelmed at Taejon and Company L, 34th Infantry, which remained in the city as a rear guard, lost 107 out of 153 men.  However, there are no provisions in Army Regulations for the appointment of a Soldier to second lieutenant based solely on his being the sole survivor of his unit.  While a Soldier would assume the role of commander if those above him were killed or incapacitated, this does not constitute a promotion or an appointment.

3.  There is no evidence of record that the applicant was recommended for or awarded the Silver Star or the Bronze Star Medal by higher authority.  Therefore, there is insufficient evidence to award either of these two medals.

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

5.  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 that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X___  ___X____  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      _________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)                                         AR20080013867



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ABCMR Record of Proceedings (cont)                                         AR20080013867



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