IN THE CASE OF:	  

		BOARD DATE:	       12 February 2009

		DOCKET NUMBER:  AR20080016171 


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 correction of his WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge) to show award of the Silver Star.  

2.  The applicant states that he was wounded during World War II (WWII) and was hospitalized in Italy in 1943 where he was presented the Silver Star at the hospital.  He adds that he has waited for 64 years to receive the Silver Star that he was awarded in 1943.  

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  Extract of a book named “History of Third Infantry Division In World War II.” 

	b.  Letter, dated 14 July 2008, from the National Personnel Records Center (NPRC).

	c.  WD AGO Form 53-55, dated 3 June 1945.

	d.  Letter, dated 5 January 2008, from the applicant’s daughter to a Member of Congress.  



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 remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant's WD AGO Form 53-55 shows he was inducted into the Army of the United States and entered active duty in Chicago, Illinois, on 13 February 1941.  This form also shows that at the time of his separation, the applicant held military occupational specialty (MOS) 610 (Platoon Sergeant) and was assigned to Headquarters Company, 2nd Battalion, 50th Infantry.  

4.  The applicant's WD AGO Form 53-55 shows he departed the United States on 24 October 1942 and arrived in the European Theater of Operations (ETO) on 8 November 1942.  He departed the ETO on 30 March 1945 and arrived back in the United States on 9 April 1945.  He completed 1 year, 10 months, and 5 days of continental service and 2 years, 5 months, and 16 days of foreign service.  He was honorably separated on 3 June 1945.

5.  Item 31 (Military Qualification and Date) of the applicant's WD AGO Form
53-55 shows he was awarded the Combat Infantryman Badge on 14 July 1944 and the Expert Marksmanship Qualification Badge with Machinegun Bar in 1941. 

6.  Item 32 (Battles and Campaigns) of the applicant’s WD AGO Form 53-55 shows he participated in the Rome-Arno, Algeria-French Morocco, Tunisia, Sicily, and Naples-Foggia campaigns during WWII.

7.  Item 33 (Decorations and Citations) of the applicant's WD AGO Form 53-55 shows the applicant was awarded five Overseas Service Bars, the American Defense Service Ribbon, the Good Conduct Medal, the Purple Heart, the Distinguished Unit Badge, the European-African-Middle Eastern Campaign Medal with a silver service star and a bronze service star.  Item 33 does not show award of the Silver Star.

8.  Item 34 (Wounds Received in Action), of the applicant's WD AGO Form      53-55 shows the applicant was wounded in action in Italy on 18 September 1943. 

9.  There are no general orders in the applicant’s records that show award of the Silver Star.  

10.  The applicant submitted an extract from a book titled “History of Third Infantry Division In World War II,” edited by D----- T------.  This book was originally published in 1947 by the Infantry Journal Press.  It details the 3rd Infantry Division’s overseas campaigns during WWII and provides a by-name listing of the division’s Soldiers who were awarded the Distinguished Service Cross, the Distinguished Service Medal, and the Silver Star during WWII.  The applicant’s name is listed as having received the Silver Star while assigned to Headquarters Company, 2nd Battalion, 30th Infantry, in Sicily on 18 August 1943.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was awarded the Silver Star during his hospitalization in Italy in 1943.

2.  The extract of a journal provided by the applicant that lists his name as a recipient of the Silver Star was noted; however, it is insufficient by itself to show the applicant was awarded the Silver Star.  The applicant’s record is void of any formal recommendation, approval through the chain of command, or orders that show he was awarded the Silver Star.  Furthermore, there is no evidence in the available record and the applicant did not submit any substantiating evidence that shows the specific acts of heroism and courage against the enemy that he performed with marked distinction that led to award of the Silver Star.  
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.


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      _______ _   _______   ___
               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)                                         AR20080016171





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ABCMR Record of Proceedings (cont)                                         AR20080016171



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