DOCKET NUMBER:  AR20090002662 


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

2.  The applicant states that his WD AGO Form 53-55 contains an error in that it does not list award of the Silver Star.

3.  The applicant provides a copy of his WD AGO Form 53-55, dated 15 October 1945; a copy of a DA Form 1577 (Authorization for Issuance of Awards), dated 2 July 1992;  and a copy of a citation, issued by Headquarters, 10th Mountain Division, on 18 June 1945, in support of his request.

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 in the Army of the United States and entered active duty at Fort Sam Houston, TX, on 9 December 1942.  This form also shows that at the time of his separation, the applicant held military occupational specialty (MOS) 745 (Rifleman) and was assigned to Company K, 87th Infantry.

4.  The applicant's WD AGO Form 53-55 shows he departed the United States on 29 July 1943 and arrived in the Asiatic-Pacific Theater of Operations (APTO) on 6 August 1943.  He departed the APTO on 16 November 1943 and arrived back in the United States on 4 December 1943.  He then departed the United States on 4 January 1945 and arrived in the European-African-Middle Eastern Theater of Operations (EAMETO) on 13 January 1945.  He departed the EAMETO on 2 August 1945 and arrived back in the United States on 11 August 1945.  He completed 1 year, 10 months, and 23 days of continental service and 11 months and 16 days of foreign service.  He was honorably separated on 16 October 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.

6.  Item 32 (Battles and Campaigns) of the applicant’s WD AGO Form 53-55 shows he participated in the North Apennines, the Po Valley, and the Aleutians Island campaigns during World War II (WWII).

7.  Item 33 (Decorations and Citations) of the applicant's WD AGO Form 53-55 shows he was awarded the Bronze Star Medal (on orders dated 18 June 1945), European-African-Middle Eastern Campaign Medal with two bronze service stars, Asiatic-Pacific Campaign Medal with one bronze service star, Purple Heart, and one overseas service bar.  Item 33 does not show award of the Silver Star. 

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

9.  The applicant submitted a copy of a citation issued by Headquarters, 10th Mountain Division, dated 18 June 1945.  The citation does not state the type of 

award and/or if it were approved.  The citation reads as follows: 

"For heroic achievement in action on 27 April 1945 near Garda, Italy.  Assuming command of a rifle squad after the leader had been killed, [Applicant] led his men throughout the final offensive in Italy.  When the advance was held up by an enemy road block, protected by artillery and machine gun fire, he and his squad inflicted heavy damage and infiltrated through the enemy’s positions and into a town.  There, he engaged the hostile defender in a fire fight and drove them from the town.  He continually exposed himself to the greatest danger and demonstrated the finest leadership and ability in accomplishing this vital mission, which enabled the advance to continue."

10.  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.

11.  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.  The applicant contends that his DD Form 214 should be corrected to show award of the Silver Star.  He believes he is entitled to the Silver Star because a citation was issued on 18 June 1945 by Headquarters, 10th Mountain Division, that described his actions on 27 April 1945.

2.  It is the duty and responsibility of commanders at the time of a Soldier's act, or shortly thereafter, to determine whether a Soldier's actions were so extraordinary 
and so noteworthy as to warrant award of a specific decoration.  In this case, the applicant’s WD AGO Form 53-55 shows the applicant was awarded the Bronze 
Star Medal on orders dated 18 June 1945, the same date shown on the citation he submitted.  It is unclear if this citation pertains to his already-awarded Bronze Star Medal or to another award.  After almost sixty years have passed, it is impossible to ascertain the decision process used by the commander to evaluate the worthiness of particular acts of valor.

3.  Generally, a citation does not overcome the presumption of regularity and the absence of any military records which indicate the applicant was recommended for or awarded the Silver Star for the events that took place on 27 April 1945.  There is insufficient evidence to award the applicant the Silver Star or correct his DD Form 214 to show this award in this case. 

4.  While the available evidence is insufficient for awarding the applicant the Silver Star, this in no way affects the applicant’s right to pursue his claim for the Silver Star by submitting a request through his Member of Congress 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)                                         AR20090002662



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ABCMR Record of Proceedings (cont)                                         AR20090002662



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