IN THE CASE OF:
BOARD DATE: 5 March 2009
DOCKET NUMBER: AR20080016302
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, the son of the deceased former service member (FSM), requests correction of his father's military records to show award of the Silver Star for service in the Republic of Korea.
2. The applicant states that family members have told him that the FSM was awarded the Silver Star and that newspapers had reported on his receiving this award for service while stationed in the Republic of Korea.
3. The applicant provides, in support of his application, a copy of the FSM's DD Form 214 (Report of Separation from the Armed Forces of the United States), the FSM's Certificate of Death, and the applicant's birth certificate.
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 applicants 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 applicants 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 for review. A fire destroyed approximately 18 million service member's records at the National Personnel Records Center in 1973. It is believed that his records were lost or destroyed in that fire. However, there are sufficient documents available to conduct a fair and impartial review of this specific request.
3. The FSM's DD Form 214 provides the following information:
a. The FSM was inducted into the Army of the United States and entered active service on 3 November 1952.
b. The FSM served overseas for 1 year, 3 months, and 19 days. He was assigned for duty as a heavy mortar man with the 179th Infantry Regiment in the Republic of Korea.
c. The FSM was released from active duty on 20 August 1954 and transferred to the U.S. Army Reserve to complete his remaining Reserve obligation. He had attained the rank of private first class (PFC)/E-3.
d. The FSM's awards included the Korean Service Medal with one bronze service star, Combat Infantryman Badge, National Defense Service Medal, and the Good Conduct Medal. It does not show award of the Silver Star.
4. 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.
5. A review of the "Silver Star" awards book maintained by the Awards Branch, U.S. Army Human Resources Command, Alexandria, Virginia, failed to show award of the Silver Star to the FSM.
6. Title 10 of the United States Code, section 1130 (10 USC 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 the FSM was awarded the Silver Star for his service in the Republic of Korea.
2. The applicant has not provided any documentary evidence or convincing argument showing that the FSM was awarded the Silver Star.
3. 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 the aforementioned requirement.
4. While the available evidence is insufficient for awarding the FSM a Silver Star, this in no way affects the applicants right to pursue his claim for the Silver Star on behalf of the FSM by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.
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.
________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.
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