IN THE CASE OF:	

		BOARD DATE:	13 August 2009    

		DOCKET NUMBER:  AR20090003506 


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 that he be awarded the Silver Star for his actions during World War II. 

2.  The applicant states that right after World War II he was informed that he was being recommended for this award.  He believes that the "fighting 'I' participated in warrants this award." 

3.  The applicant provides an account of some episodes in his combat experiences 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.   A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  The available records consist of copies of his WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge), WD AGO Form 100 (Separation Qualification Record), and his War Department Form 372A (Final Payment - Worksheet).

3.  The applicant was inducted into the Army of the United States on 1 February 1943 and entered active service on 8 February 1943.  He completed training and reached the European-African-Middle Eastern Theater of Operations on
11 October 1944 with the 395th Infantry Regiment.  He served with that unit throughout the Ardennes-Alsace, Rhineland, and Central Europe campaigns and embarked for the United States on 19 December 1945.

4.  Item 23 (Decorations and Citations) of his WD AGO Form 53-55 shows he was awarded the American Campaign Medal, European-African-Middle Eastern Campaign Medal, Army Good Conduct Medal, and the World War II Victory Medal, Expert Marksmanship Qualification Badge with Rifle Bar, Sharpshooter Marksmanship Qualification Badge with Carbine Bar, the Driver and Mechanic Badge with Mechanic Bar, and the Combat Infantryman Badge.

5.  The available records also contain DA Forms 1577 (Authorization for Issuance of Awards) issued by the National Personnel Records Center, St. Louis, MO, dated 22 July 1999 and 16 November 2000.  These documents show the applicant's awards include the Bronze Star Medal, European-African-Middle Eastern Campaign Medal with 3 bronze service stars, Combat Infantryman Badge, Presidential Unit Citation, and the Honorable Service Lapel Button.  

6.  Army Regulation 600-8-22 (Military Awards), paragraph 3-4 (Who may recommend) states, "It is the responsibility of any individual having personal
knowledge of an act, achievement, or service believed to warrant the award of a decoration, to submit a formal recommendation into military command channels for consideration.  The Army does not condone self-recognition; therefore, a Soldier may not recommend himself/herself for award of a decoration."

7.  This regulation also provides 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.


8.  The applicant's account of his combat experiences include:

   a.  Once he was on a patrol that had unwittingly crossed the German lines.  "A lot of shots were fired, but no one was hurt."
   
   b.  During the Battle of the Bulge he shot down a German fighter plane with his jeep-mounted .50 caliber machinegun.
   
   c.  The company was using a farmhouse as a command post.  The applicant observed two Belgian farmers signaling to the Germans and they were arrested. 
   
   d.  The applicant, the commanding officer, and the executive officer were blown out of the jeep by a nearby explosion.  Only the commander was hurt.  He sustained a small fragment wound.
   
   e.  The applicant captured four enemy civilians at a railway station and silenced an enemy machine gun.
   
   f.  He was responsible for scouting by-passed villages.  They gathered up any dangerous civilian weapons.  "Never had a fight."
   
   g.  He was wounded on the arm by an enemy mortar round and cared for it himself.  He told the medic that he did not want a Purple Heart for such a superficial wound.
   
   h.  The applicant came upon a small airstrip.  It was so recently abandoned that the coffee was still hot.  An American plane landed, but took off immediately when the applicant told them the Germans were probably still hiding in the trees.
   
   i.  One day, when a tank unit was late getting started, he entered a village with his jeep and two others that also mounted machineguns.  About 100 German soldiers surrendered to him.
   
   j.  He captured a small Nazi flag and had the men he had served with sign it.
   
   k.  He crossed the Rhine on a railroad bridge that was still under German artillery and air attack.  The engineers were still laying steel plates over the rails.  He was concerned that they might run out of gas because it took so long.
   
   l.  The next day, he put his tank destroyer training to use.  Someone had parked a tank destroyer in a sheltered alleyway where they wanted to set up the field kitchen.  He was able to move it and everyone got a hot breakfast. 
   m.  Later that same day he watched a German Tiger tank destroy one of ours with just two rounds.  A German fighter plane flew overhead at about 50 feet and he shot it full of holes but apparently didn’t hit the engine. 

9.  Title 10, U.S. Code, section 1130 allows the Service Secretary concerned to review a proposal for the award of, or upgrading of, a decoration that is otherwise precluded from consideration by limitations established by law or policy.  In order to request an award under Title 10, U.s. Code, section 1130, a DA Form 638 (Recommendation for Award) must be submitted.  The DA Form 638 should clearly identify the unit, the period of assignment, and the award being recommended.  A narrative of the actions or period for which the award is requested must accompany the DA Form 638.  In addition, the request should be supported by sworn affidavits, eyewitness statements, certificates and related documents.  Corroborating evidence is best provided by commanders, leaders, and fellow Soldiers who had personal (i.e., eyewitness) knowledge of the circumstances and events relative to the request.  

10.  Title 10, U.S. Code, section 1130 also requires that such a request be referred to the Service Secretary from a Member of Congress.   Therefore, it must be submitted through a Member of Congress to the Secretary of the Army at the following agency: United States Army Human Resources Command, Personnel Service Support Division, 200 Stovall Street, Room 3S67, Alexandria, VA  22332-0405. The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that right after World War II he was informed that he was being recommended for this award.  He believes that the "fighting 'I' participated in warrants this award." 

2.  The applicant's experiences, as he relates them, indicate significant contributions to the war effort, but they do not constitute spirited and conspicuous acts of heroism and courage.  Furthermore, by regulation, Soldiers may not recommend themselves for awards.  

3.  While the available evidence is insufficient for awarding the applicant the Silver Star, this does not affect his 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)                                         AR20090003506



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ABCMR Record of Proceedings (cont)                                         AR20090003506



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