IN THE CASE OF:	  

		BOARD DATE: 	        4 June 2009

		DOCKET NUMBER:  AR20090003771 


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 he be awarded the Medal of Honor (MOH).

2.  The applicant states, in effect, that there is no error in his record, and that he was in fact awarded the MOH on paper.  However, he never received the ceremony or the medal itself.

3.  The applicant provides his WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) in support of his 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 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 (NPRC) 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.  This case is being considered using reconstructed records that primarily consist of his WD AGO Form 53-55.

3.  The applicant's WD AGO Form 53-55 shows he was inducted into the Army of the United States (AUS) and entered active duty on 3 December 1941.  He held military occupational specialty (MOS) 014 (Auto Mechanic) and he served with Headquarters Company, 3rd Battalion, 32nd Armored Regiment.  It also shows that he served in the European Theater of Operations (ETO) from 16 September 1943 until his departure on 20 September 1945.  

4.  Item 32 (Battles and Campaigns) of the applicant's WD AGO Form 53-55 confirms his participation in the Normandy, North France, Rhineland, Ardennes, and Central Europe campaigns, and Item 33 (Decorations and Citations) shows he earned the Bronze Star Medal and Army Good Conduct Medal.  Item 55 (Remarks) shows he was also awarded the European African Middle Eastern Theater Service Medal, American Defense Service Medal, 4 overseas service bars and the Lapel Button. 

5.  The reconstructed NPRC file made available to this Board is void of any orders or other documents that show the applicant was ever recommended for or awarded the MOH 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 the decision as to which award is appropriate are both subjective decisions made by the commander having award approval authority.

7.  Paragraph 3-7 of the awards regulation states, in pertinent part, that the MOH is awarded by the President in the name of Congress to a person who, while a member of the Army, distinguishes himself or herself conspicuously by gallantry and intrepidity at the risk of his or her life above and beyond the call of duty while engaged in an action against an enemy of the United States; while engaged in military operations involving conflict with an opposing foreign force; or while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party. It further stipulates that the deed performed must have been one of personal bravery or self-sacrifice so conspicuous as to clearly distinguish the individual above his comrades and must have involved risk of life. Incontestable proof of the performance of the service will be exacted and each recommendation for the award of this decoration will be considered on the standard of extraordinary merit.

8.  Title 10 of the U.S. Code, section 1130 provides the legal authority for consideration of proposals for decorations not previously submitted in a 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 of entitlement to the MOH was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence is void of any orders or other documents confirming the applicant was ever recommended for or awarded the MOH by proper authority.  Therefore, absent a recommendation and supporting documentation, there is an insufficient evidentiary basis to support granting the requested relief.

3.  While there is insufficient documentation and evidence for awarding the applicant the MOH, this in no way affects the applicant’s right to pursue his claim for award of the MOH by submitting a request, with an award recommendation and supporting evidence, through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

4.  The applicant is advised that this action is based solely on the lack of sufficient documentation and in no way reflects a prejudicial or negative opinion regarding his claim.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.





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)                                         AR20090003771



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ABCMR Record of Proceedings (cont)                                         AR20090003771



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