IN THE CASE OF:	  

		BOARD DATE:	  5 May 2009

		DOCKET NUMBER:  AR20080018280 


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, in effect, award of the Bronze Star Medal for valor and its addition to his DD Form 214 (Report of Separation from the Armed Forces of the United States).  

2.  The applicant states, in effect, that in August 2002 it was realized an oversight of a valorous deed had occurred.  In effect, it was realized that the applicant's selflessness during the battle and defense of Sandbag Castle should be acknowledged.  The methodology needed to receive the Bronze Star Medal was researched.  He is submitting the elements required for the award and a positive ruling is hoped for.   

3.  In support of his application, the applicant provides copies of his DD Form 214; a letter from Major (Retired) R----- A. E---------; a letter from the Department of Veterans Affairs (VA); a DA Form 638 (Recommendation for Award); a letter from the National Personnel Records Center (NPRC), St. Louis, Missouri to a Member of Congress; an article from the New Jersey Legionnaire; a 27th Infantry Regiment Memorial Ceremony Sequence of Events factsheet and pictures; an Elements Requested to Supplement Award Recommendation, Military Awards Branch, Alexandria, Virginia; a Command Report for the 27th Infantry Regiment and battle description for Sandbag Castle; an eyewitness account; a picture of Sandbag Castle; and an after-action report.




CONSIDERATION OF EVIDENCE:

1.  Title 10, United States 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 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 reconstructed records contain sufficient documentation and evidence submitted by the applicant for the Board to conduct a fair and impartial review of this case.  

3.  The available military records show the applicant was inducted into the Army of the United States, in pay grade E-1, on 7 May 1951.  He served overseas for 11 months and 15 days.  Item 5 (Specialty Number or Symbol) of the applicant’s DD Form 214 shows he held the military occupational specialty (MOS) 1745 (Light Weapons Infantryman). 

4.  The applicant was released from active duty on 29 September 1953, with a general, under honorable conditions discharge.  He was transferred to the U.S. Army Reserve (USAR) to complete his remaining Reserve obligation.

5.  Entries on the applicant’s DD Form 214, Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaigns Ribbons Awarded or Authorized), list the following awards:  the Korean Service Medal with two bronze service stars, United Nations Service Medal, and the Combat Infantryman Badge.  

6.  There is no evidence in his records that he was recommended for award of the Bronze Star Medal during the Korean War.  

7.  The available records show that the applicant also submitted an earlier request for an award of the Bronze Star Medal based on receipt of the Combat Infantryman Badge [Case Number AR2002068747] on 21 May 2002.  The Board denied his request because the evidence showed he received the Combat Infantryman Badge during the Korean War.  Award of the Bronze Star Medal to individuals who were authorized the Combat Infantryman Badge or the Combat Medical Badge was applicable only to Soldiers who earned these awards during World War II.

8.  The applicant's available records contain, and the applicant submitted a copy of a letter, dated 4 April 2003, from the NPRC, St. Louis, wherein a Member of Congress was advised that the applicant's entitlement to the following awards had been verified:  the National Defense Service Medal, Korean Service Medal with two bronze service stars, Combat Infantryman Badge, and the United Nations Service Medal.  The letter did not advise that he was entitled to award of the Bronze Star Medal.

9.  The applicant submits documentation that was prepared for submission to the Military Awards Branch, Human Resources Command (HRC), Alexandria, that lists the elements requested to supplement an award recommendation.  The elements are:  a referral by a Member of Congress, eyewitness statements attesting to the acts performed by the Soldier being recommended, sworn affidavits from individuals making statements on behalf of the Soldier being recommended, a discharge document, and other related documentation pertaining to the Soldier and the act(s) to be recognized.  It appears that the applicant and his wartime comrades may have used this method to recommend him for the Bronze Star Medal.  On 13 April 2009, a staff member of the Military Awards Branch, HRC, Alexandria, verified that the applicant had submitted a request for award of the Bronze Star Medal to that office on 24 August 2006.  His request was submitted under Title 10, U.S. Code, section 1130.  However, the request was submitted without congressional interest and, therefore, it was denied.

10.  The applicant submits documentation that shows he was recommended for award of the Bronze Star Medal by his wartime platoon leader on 20 December 2006 and by a squad member on an unspecified date.  The recommendations stated, in effect, that the applicant performed selflessly during the Battle for Sandbag Castle and his actions were overlooked.  He was exposed to enemy fire and incoming mortar rounds.  He carried the wounded and the dead down the hill during the lulls in action and willingly did whatever needed to be done.  The applicant served his country bravely and selflessly.

11.  The applicant also submits documentation reference a Sandbag Castle Memorial Ceremony held in 2002 honoring those killed in action and all members, including the applicant, of the regiment who participated in the major battle in Korea in the summer and fall of 1952.
12.  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.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

13.  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.  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.  

2.  The applicant's contention that he should be awarded the Bronze Star Medal is acknowledged; however, no evidence was found either in his available service records or in the documentation he submitted to support award of the Bronze Star Medal and its addition to his DD Form 214.  The copy of the recommendation provided by the applicant is insufficient to form a basis for addition of this award to his DD Form 214.

3.  In view of the foregoing, there is no basis for granting the applicant's 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 (emphasis added) with additional supporting evidence under the provisions of Title 10, U.S. Code, section 1130.






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.

ABCMR Record of Proceedings (cont)                                         AR20080018280



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ABCMR Record of Proceedings (cont)                                         AR20080018280



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