IN THE CASE OF:	  

		BOARD DATE:	  12 May 2009

		DOCKET NUMBER:  AR20090000290 


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, that the Bronze Star Medal (BSM) be added to the WD AGO Form 53-98 (Military Record and Report of Separation Certificate of Service) of his deceased father, a former service member (FSM).

2.  The applicant states, in effect, that the BSM is not included in the list of awards contained on the FSM’s WD AGO Form 53-98.  

3.  The applicant provides a self-authored statement; Army Review Boards Agency (ARBA) Support Division, St. Louis, Missouri, letter; National Personnel Records Center (NPRC) letter; NA Form 13038 (Certification of Military Service); death certificate; and birth certificate in support of the application.

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 FSM's military record is not available to the Board for review.  A 
fire destroyed approximately 18 million service members’ records at the 
NPRC in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents on file for the Board to conduct a fair and impartial review of this case.  This case is being 
considered using reconstructed records, which primarily consist of the FSM's 
WD AGO Form 53-98. 

3.  The FSM's separation document shows that he was appointed a Reserve commissioned officer in the Officer Reserve Corps and he entered active duty on 
23 October 1940.  He served on active duty 5 years, 2 months, and 17 days before being honorably released from active duty (REFRAD) on 20 January 1946.  It also shows he was a member of the Cavalry branch of service and he was assigned to the 66th Armored Regiment, 2nd Armored Division, and he held the rank of captain (CPT) on the date of his REFRAD. 

4.  The FSM's WD AGO Form 53-98 also confirms he served in the European Theater of Operations (ETO) from 24 December 1942 through 12 March 1945, and that he participated in the Sicily, Northern France, Rhineland, Normandy, and Ardennes campaigns of World War II.  Item 33 (Decorations and Citations) is only partially legible and confirms only that he earned the American Defense Service Medal. 

5.  An NPRC letter, dated 13 February 2006, verified the FSM's entitlement to the American Defense Service Medal, American Campaign Medal, European-African-Middle Eastern Campaign Medal with 1 silver service star, and the Honorable Service Lapel Button.  It failed to confirm his eligibility for award of the BSM or any other awards, and the NPRC file is void of any orders or other documents that indicate the FSM was ever recommended for or awarded the BSM by proper authority while serving on active duty.  

6.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 3-1 states, in pertinent part, that the decision to award an individual a decoration and as to which award is appropriate are both subjective decisions made by the commander having award approval authority.  Paragraph 3-13 contains guidance on award of the BSM.  It states, in pertinent part, that it is awarded for heroic or meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy.



7.  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's contention that the FSM’s WD AGO Form 53-98 should be corrected to reflect the BSM has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The NPRC file in this case is void of any orders or other documents that indicate the FSM was ever recommended for or awarded the BSM by proper authority while serving on active duty, and the applicant has failed to provide independent documentary evidence verifying that the FSM was recommended for or awarded the BSM while serving on active duty.  Therefore, absent any evidence confirming the FSM's eligibility for the BSM, the regulatory criteria necessary to support award of the BSM has not been satisfied in this case and it would not be appropriate to grant the applicant’s request.  

3.  While the available evidence is insufficient for awarding the FSM the BSM, this in no way affects the applicant’s right to pursue his claim for the BSM on behalf of the FSM by submitting a request through his Member of Congress under the provisions of 10 USC 1130.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of the FSM’s service in arms.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

___x____  ___x____  ___x____  GRANT FORMAL HEARING

________  ________  ________  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)                                         AR20090000290



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ABCMR Record of Proceedings (cont)                                         AR20090000290



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